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Permitting Solar, Wind and Geothermal Projects on Public and Tribal Lands

Presented by: Alan Waltner, Law Offices of Alan Waltnerwww.waltnerlaw.com

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Overview

• Goal - Making Sense of a Complex Regulatory System

• Alternative Energy Developments and Their Typical Impacts

• Key Recent Developments (EO, MOUs and Program EISs)

• Preferential Treatment and Programmatic Documents – Benefits and Limitations

• Overview of Federal, State, and Local Regulatory Programs that may Apply to Alternative Energy Developments

• Special Considerations on Federal, State and Tribal Lands

• Ways to Increase the Likelihood of Success

• Discussion/Closing Remarks

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Components of an Alternative Energy Project

• Wind turbines• Photovoltaic panels or thermal collectors• Geothermal drilling rigs, production facilities, pipelines

and generation facilities• Transmission lines• Roads• Buildings• Direct use facilities

• Geothermal projects are generally relatively small in scale and impact compared to other renewable energy projects such as wind and solar

• All components need to be considered

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Stages of the Development Process

• Area-wide Planning• Leasing• Exploration• Development• Production• Abandonment/closure/restoration

• Each can be a trigger for regulatory requirements

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Proposed Ivanpah Solar Power Project

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Proposed Ivanpah Solar Power Project

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The Geysers

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Salton Sea Power Project (Proposed Unit 6)

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Typical Environmental Impacts of an Alternative Energy Development

• Visual impacts • Habitat disturbance (animals, plants, wetlands, old growth forests)• Cultural/historical resources impacts• Air emissions (construction equipment emissions, fugitive dust,

hydrogen sulfide and carbon dioxide from geothermal development)• Water use (mirror washing, cooling towers)• Wastewater discharges• Hazardous materials and waste• Noise (wind and geothermal)• Land use compatibility (i.e. recreational uses)

• Avoiding or reducing impacts will reduce the regulatory hurdles

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Key Recent Developments

• California Executive Order S-14-08

• CEC/DFG Memorandum of Understanding (MOU)

• State/Federal Memorandum of Understanding

• BLM Programmatic EISs

• Wind PEIS Completed June 2005

• Geothermal PEIS Completed October 2008

• Transmission Corridor PEIS Completed November 2008

• Solar EIS Initiated May 2008 – Currently Underway

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California Executive Order S-14-08

• Issued November 17, 2008

• Establishes a 33% Renewable Portfolio Standard (RPS) by 2020

• SB 107 established a 20% RPS by 2010

• Directs state agencies to “take all appropriate actions” to implement this target

• Expedites permitting for all renewable energy projects

• Adopts various actions, goals and targets of the CEC/DFG MOU

• “Scoping” sessions of the participating agencies held in March 2009

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CEC/DFG Memorandum of Understanding

• Also adopted on November 17, 2008• Does not waive or modify any environmental laws• Formalizes the Renewable Energy Action Team (REAT)• Directs creation of a “one-stop” process for permitting

renewable energy projects• Requires the identification of priority areas for

development by February 1, 2009, where permitting times will be reduced by 50%

• Directs the initiation of a Natural Community Conservation Plan (NCCP), to be known as the Desert Renewable Energy Conservation Plan (DRECP)

• Specifies the establishment of long term California Endangered Species Act assurances by June 1, 2012

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State/Federal Memorandum of Understanding

• Also adopted on November 17, 2008

• Does not waive or modify any environmental laws

• Includes the CEC, DFG, Bureau of Land Management (BLM) and US Fish and Wildlife Service (USFWS)

• Establishes a Renewable Energy Permit Team (REPT) to coordinate and expedite project permitting

• Commits the federal agencies to developing a joint desert energy conservation plan (DECP)

• Directs establishment of Best Management Practices (BMPs) and other interim guidelines

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Benefits and Limitations of Preferential Treatment

• Preferential treatment can get your project to the top of the “to do” pile

• Access to agency staff is enhanced

• Access to agency management is increased if problems arise

• State MOU principally addresses state endangered species, which generally are not a key hurdle

• Neither MOU waives or modifies substantive environmental laws

• Team building with agency staff is essential

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BLM Programmatic PEISs

• Address priority development areas in 11 western states, including California and Nevada

• Includes more detailed analysis of certain near-term projects

• Will streamline future NEPA analysis• Provides a template for the analysis of impacts• Includes generic best management practices

that provide a menu of future mitigation options

• Addresses cumulative impacts

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Benefits of Programmatic Documents

• Provide a template for project-level environmental reviews, including analytical methods, mitigation measures, and impact conclusions

• May be adequate for project-level cumulative impact analyses

• May reduce the scope of issues in subsequent legal challenges

• Provides for public participation at an early stage• May be required by NEPA in any event

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Limitations of Programmatic Documents

• Judicial challenges generally can be brought any time within 6 years of adoption (federal documents only, such as EA, EIS, or BO)

• Reliance on a subsequently invalidated document may undermine project-level environmental analyses

• Given the typical lack of project-specific details, the analysis in the programmatic document may be too general to support project-level approvals

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FEDERAL, STATE AND LOCAL REGULATIONS

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The Importance of Location

• Surface owner (USFWS, BLM, DOD, state, or tribe) must approve development

• Applicable regulations will depend on whether land is federally, state or tribally owned

• Complex issues of sovereignty and waiver need to be evaluated

• Some lands are off-limits to any development• All aspects of the project (including offsite

components such as transmission) need to be evaluated

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Key Federal Regulatory Programs

• BLM Regulations• National Environmental Policy Act (NEPA)• Endangered Species Act (ESA)• Clean Water Act – Section 404 (CWA/404)• Clean Water Act – Section 402 (CWA/402)• National Historic Preservation Act (Section 106)

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BLM’s FLPMA Right of Way Grant Regulations (Wind and Solar)

• Apply to wind and solar projects• Includes any terms, conditions, and stipulations that BLM

determines to be in the public interest, which may include modifying the proposed use or changing the route or location of the facilities

• Project must not unnecessarily damage the environment or result in unnecessary or undue degradation

• Grantee must, to the extent practicable, comply with all existing and subsequently enacted, issued, or amended Federal laws and regulations and state laws and regulations applicable to the authorized use

• Implementing policies adopted in April 2007 (solar) and December 2008 (wind)

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BLM Geothermal Regulations

• Geothermal-specific regulations apply

• Include general requirements to –

• Protect the quality of waters, air, and other natural resources, including wildlife, and natural history

• Prevent “unnecessary or undue degradation” of land

• Protect cultural, scenic, and recreational resources

• Accommodate other land uses

• Minimize noise

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BLM Geothermal Regulations (continued)

• Prohibit leasing in –• National Parks, National Recreation Areas, and

Indian trust lands outside of Indian Reservations

• Wilderness areas or wilderness study areas, except those study areas established by Congress where leasing is expressly allowed

• May require collection of environmental data for up to 1 year before operations

• Failure to comply with environmental requirements can be a basis for lease revocation

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National Environmental Policy Act (NEPA)

• Requires preparation of appropriate environmental documents in connection with “major federal actions”

• Administered by federal lead agency• Generally requires preparation of an

Environmental Impact Statement (EIS) or Environmental Assessment (EA)

• Project NEPA documents may now be streamlined as a result of BLM’s 2008 Programmatic EIS

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Federal Endangered Species Act (ESA)

• ESA program is oriented around the listing of species and the designation of critical habitat

• Administered by USFWS for most terrestrial species

• Prohibits the unpermitted “take” of listed species, defined to include the destruction or modification of habitat where it directly leads to death or injury of listed wildlife

• Significant penalties for illegal take and potential citizen suits

• Take can be authorized either through Section 10 permits, or Section 7 consultation

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Sage GrouseHabitat

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Alternate ESA Permit Pathways

• The ESA offers two pathways for addressing the prohibition against “take” of a species under Section 9

• Section 7 -- Consultation with USFWS • Section 10 -- Incidental take permit (ITP) and

habitat conservation plan (HCP)

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Consultation triggered by action authorized, funded, or carried out by the federal agency

Applies to any non-federal project which has a “federal nexus” – e.g., federal approval (BLM lease, or Corps 404 permit) or federal funding

Can be “formal” or “informal” depending upon the degree of impact

Can be done on a programmatic basis

Section 7 Consultation

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Standards Under ESA Section 7

• USFWS evaluates whether the action, together with cumulative effects, is likely to “jeopardize” the continued existence of the species

• If USFWS finds potential “jeopardy” it must identify reasonable and prudent alternatives

• If USFWS finds no jeopardy, must identify measures to minimize impacts

Federal agencies also must ensure that their actions are “not likely to result in the destruction, or adverse modification” of any formally designated “critical habitat”

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•Only applies if no federal “nexus”•“Taking” may be allowed by permit if it is “incidental to, and not the purpose of” an otherwise lawful activity•Requires a Habitat Conservation Plan (HCP) that:

• Identifies impact minimization measures• Proposes species conservation measures• Guarantees funding

•More complex than Section 7 consultation

Section 10 Permits and Habitat Conservation Plans

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Clean Water Act Section 404

• Prohibits the filling of wetlands and other waters without a permit

• Administered by the US Army Corps of Engineers

• Proponents should avoid wetlands and other “waters” where practicable

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Section 404 Permits

• Nationwide Permits (NWP)• Issued in the form of regulations, covering

particular categories of activities (e.g., surveys, utility lines) with minor impacts

• Individual Permits• Site specific and project specific • Must demonstrate that project represents the

“least environmentally damaging practicable alternative” (LEDPA) by analyzing alternative sites and configurations for the project

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Clean Water Act Section 402

• Triggered by “point source” discharge to “navigable” waters or tributaries

• Generally administered by the states

• NPDES permit required

• Also applies to storm water discharges from construction and industrial activities

• State has issued general permits for most activities

• Simple notice of intent process

• Stormwater pollution prevention plan and best management practices required

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Other Potentially Applicable Federal Programs

• Migratory Bird Treaty Act• Fish and Wildlife Coordination Act• National Wilderness Preservation Act• Wild and Scenic Rivers Act• Safe Drinking Water Act• Resource Conservation and Recovery Act• Occupational Safety and Health Act• Location-specific statutes• Budget riders, etc.

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Potentially Applicable State Regulatory Programs

• Programs Generally Applicable to Federal Lands

• Water quality certifications under CWA Section 401

• Historic resource reviews (Section 106)

• CEC review of projects over 50MW

• CEQA functional equivalence approach

• Air permits (NSR, PSD and Title V)

• Wastewater discharge permits Under CWA Section 402, including storm water construction permits

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Section 401 Water Quality Certification

• Part of the Federal permitting process• Applies to “any applicant for a Federal license or

permit . . . to conduct any activity . . . which may result in any discharge into the navigable waters

• Requires Regional Water Quality Control Board certification as a precondition to federal permit issuance

• Nominally limited to water quality issues• Regional Boards are expanding the range of

issues that they are addressing• Creates incentive to avoid water quality impacts

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National Historic Preservation Act (NHPA) Section 106

• Section 106 requires consultation with State Historic Preservation Officer for projects affecting historic resources

• BLM has development a National Protocol Agreement (PA) that governs how BLM meets these responsibilities in California and portions of Nevada• Streamlines the 106 process by eliminating

case-by-case consultation on undertakings that culminate in “no historic properties affected” and “no adverse effect” findings

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Other State Processes Applicable on Federal Lands

• California Energy Commission (CEC) review• Only applies to projects 50 mw or greater• Process is CEQA functional equivalent• Can help support the federal process

• Air permits • Regulatory hurdles vary considerably by

location• Generic state equipment standards apply

• Wastewater discharge and storm water permits

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State Regulatory Programs Generally Applicable Only to State and Private Lands

• California Environmental Quality Act (CEQA)• California Endangered Species Act (CESA) • Streambed Alteration Agreements (1602)

• Need to look at all components of the project, both on-site and off-site

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Potentially Applicable Local Regulatory Programs

• General Plan

• Zoning

• Conditional use permit

• Grading permit

• Encroachment permit

• Generally not applicable to projects on federal/tribal lands

• Generally not applicable to state projects on state lands

• Apply to projects on private lands (including offsite components such as transmission lines)

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Special Considerations on BLM Lands

• Most resources are located on BLM lands• BLM applies standards of Federal Land Policy

Management Act (FLPMA)• Multiple use, sustained yield• Applicable management plans need to be

considered• California Desert Conservation Area Plan

• BLM has also established detailed leasing regulations

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Special Considerations on Forest Service Lands

• Authorization from both Forest Service and BLM required

• Forest Service is responsible for pre-leasing environmental review

• Project must be consistent with applicable forest management plan

• BLM is responsible for operations approvals• Forest Service continues to be responsible for

regulating roads and transmission lines

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Special Considerations on Tribal Lands

• Extremely complicated jurisdictional issues, particularly regarding the application of state and local requirements

• Some tribes have a sophisticated regulatory program, others have little or none

• Bureau of Indian Affairs generally approves leases and is the federal lead agency under NEPA

• Would be “inventing the wheel” since there has been minimal activity on Tribal lands thus far

• Tribes can obtain “treatment as a state” status under certain federal laws, including the CWA

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Tribal Considerations not Limited to Reservations

• Impacts on:• Sacred sites• Traditional cultural properties or landscapes• Past or present hunting, fishing, or gathering

areas• Changes in hydrology or ecological conditions of

springs, seeps, wetlands and streams that could be considered sacred or have historic use associations

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Special Considerations on State Lands (in California)

• State Lands Commission (SLC) is responsible for issuing leases on behalf of the State as owner of the resource

• Division of Oil, Gas and Geothermal Resources (DOGGR) regulates geothermal wells• Generally DOGGR is the lead agency for

CEQA purposes at the exploration stage (on both state and private lands)

• Review includes evaluation of a drilling plan• State agency approvals must comply with CEQA

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KEY RECOMMENDATIONS FORMAKING THE PROCESS WORK

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Key Strategies for Structuring the Permit Process

• EIS/EIR prepared first as a core environmental document

• Provides a definitive project description

• Establishes a mitigation template

• Provides comprehensive information on biological resources, including wetlands

• Involves the agencies and the public

• CEC staff evaluation of projects over 50MW is a “functional equivalent” that can serve the same role (example, solar MOU)

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Key Strategies for Structuring the Permit Process (continued)

• Integrate environmental planning into the initial stages of project planning

• Prepare a detailed regulatory analysis• Consider environmental constraints and avoid

them where possible• Involve the agencies early on• Coordinate environmental reviews

• The playing field is constantly changing• All calling for creative, adaptive approaches

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Discussion/Closing Remarks