BLM Right-of-Way Grants

Current applications for utility-scale solar facilities on BLM land are processed as ROW grants under Title V of the FLPMA and Title 43, Part 2802 of the Code of Federal Regulations (CFR).1 Solar developers need to apply for a ROW grant from the BLM field office within which the proposed facility is located for systems for generating, transmitting, and distributing electricity. This process can take two years or more. All utility-scale CSP or PV electric generating facilities must also comply with the BLM’s current land use plans. The scope of the environmental analysis required by NEPA for a solar energy development project must address all aspects of the solar project, including direct, indirect, and cumulative effects of the proposed action.2 If granted, the length of the ROW authorization is not limited by regulation; however, it must recognize the overall costs and useful life of solar energy facilities.3

Currently, ROW applications for solar energy development are being accepted and processed on a first- come, first-served basis. While the entire process has yet to be completed for an individual facility, one BLM staff member noted that the process is expected to take approximately 18 months.4 The ROW regulations provide authority for offering public lands under competitive bidding procedures. The BLM has indicated they will initiate a bidding process if a land use planning decision has specifically identified an area for competitive leasing. The SESAs may be designated for competitive leasing as part of the Solar PEIS.5

Steps for the BLM ROW Solar Facility Siting Process6 (BLM Flowchart):
1.    Applicant submits a SF-299 ROW application to the BLM field office with jurisdiction over the proposed project location. The SF-299 is a two page document requiring a short project description, location, and possible environmental impacts.

2.    Applicant submits a comprehensive Plan of Development (POD), a $50,000 processing deposit, and initial engineering designs on surface water drainage within 90 days of submitting the SF-299.

3.    The BLM Field Office Project Manager reviews the POD to determine data adequacy. Data adequacy is met when the BLM has received all necessary information to process the application. If necessary, the BLM reports deficiencies to the applicant.

a.    The engineering designs are sent to the BLM state office for review by an engineer contractor, who determines if changes are necessary. This can take up to 45 days.

b.    The DOD is consulted to determine conflicts with low-flight zones and other military activities.

c.    State Historic Preservation Officer (SHPO) is consulted to determine conflicts with national historic and cultural places.

d.    Tribes are engaged for Government-to-Government consultation.

4.    If deficiencies are reported, the applicant has 30 days to make changes if they are small, or 60 days if significant changes need to be made.

5.    When the BLM Field Office Project Manager deems the POD to be data adequate and it has been approved by the Field Office Manager, a briefing process within the BLM is initiated. The BLM District Manager is briefed on the project, and if approval is given, the project moves forward to the BLM State Director for approval.

6.    If the project is approved by the State Director, the BLM publishes a Notice of Intent in the Federal Register to begin the NEPA process for the project.

7.    The BLM completes a NEPA analysis for project.

a.    The BLM conducts public scoping meetings for the project.

b.    The BLM publishes a Draft EIS for the project.

i.    While preparing the Draft EIS, the BLM conducts a Section 7 Consultation with the FWS regarding possible impacts to species listed under the Endangered Species Act (see FWS process below).

c.    A 90-day public comment period is held for the Draft EIS.

d.    The BLM publishes a Final EIS for the project.

e.    The BLM holds a 30-day no-action period for public review.

8.    The BLM issues a Record of Decision (ROD), approving or denying the ROW grant.

BLM Right-of-Way Fees
Solar facilities granted a ROW are subject to rent based on fair market value of the land using real estate appraisals.7 Since the rental payment reflects the full use of public land for solar facilities, similar to a lease for industrial purposes, there are no additional royalty payments for electric generation.8

The submission of a solar facility application are assessed a $50,000 deposit fee. Each facility is also estimated to spend $200,000 to $300,000 in cost recovery over the course of the permitting process.9 Cost recovery funds are used to pay for BLM employee time spent on processing individual solar applications. If a facility is granted a ROW there will also be cost recovery fees associated with monitoring and administrative work through the life of the project.

Solar facilities granted a ROW are also required to bond for funds used to ensure compliance with the conditions of the authorization and the requirements of the regulations, including reclamation after termination of the permit. The reclamation provisions within the POD should include not only removal of solar collectors and other structures, but also the reclamation of access roads and other disturbed areas.10 The amount of the bond will vary by project based on the predicted cost of facility removal and land reclamation. For example, wind projects are assessed a $10,000 reclamation bond per turbine.11

Environmental mitigation is required for all approved solar facility ROWs. Presently, a standard protocol for determining mitigation requirements has not been adopted by the BLM. Traditionally, mitigation has required the ROW grantee to purchase and donate to the federal government private land or purchase mitigation credits at a ratio of one acre for every acre granted under the ROW.12


1 U.S. Bureau of Land Management, Instruction Memorandum No. 2007-097, 2007, http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/im_2007- 097__.html.

2 U.S. Bureau of Land Management, Instruction Memorandum No. 2007-097, 2007, http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/im_2007- 097__.html.

3 U.S. Bureau of Land Management, Instruction Memorandum No. 2007-097, 2007, http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/im_2007- 097__.html

4 U.S. Bureau of Land Management Staff Member 2, Personal Communication, July 29, 2009.

5 U.S. Bureau of Land Management Staff Member 1, Personal Communication, July 27, 2009.

6 U.S. Bureau of Land Management Staff Member 2, Personal Communication, July 29, 2009.

7 U.S. Bureau of Land Management Staff Member 10, Personal Communication, July 30, 2009.

8 U.S. Bureau of Land Management, Instruction Memorandum No. 2007-097, 2007, http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/im_2007- 097__.html.

9 U.S. Bureau of Land Management Staff Member 2, Personal Communication, July 29, 2009.

10 U.S. Bureau of Land Management, Instruction Memorandum No. 2007-097, 2007, http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2007/im_2007- 097__.html.

11 U.S. Bureau of Land Management, Instruction Memorandum No. 2009-043, 2008, http://www.windeis.anl.gov/documents/docs/IM_2009-043_BLMWindEnergyDevelopmentPolicy.pdf.

12 U.S. Bureau of Land Management Staff Member 1, Personal Communication, July 27, 2009.