Energy
Energy Related Provisions of S. 2921
By Barbara Boyle, Senior Representative, Clean Energy Solutions Campaign
Senator Feinstein’s S. 2921, the “California Desert Protection Act of 2010,” includes not only major provisions for land preservation in national monuments, wilderness areas, national parks and wild and scenic rivers. It also includes substantial provisions addressing renewable energy development on public and private lands, not just in the California desert, but in ten Western states including the entire state of California.
These provisions, taken as a whole, are designed to both speed up and improve the permitting process for large scale renewable energy and transmission on Western public and private lands. They provide clearer direction on priorities to the agencies and provide mechanisms to address environmental impacts, including new funding mechanisms for land acquisition and mitigation. Senator Feinstein’s inclusion of these elements signals her desire to balance the land protections of the bill with actions and funding to smooth the way for sensitive siting of renewable energy development and transmission in appropriate locations in the California desert and nationally, on public, private and military lands.
The following is a synopsis of the energy and climate change related provisions of the bill as introduced, along with some commentary with Sierra Club policy on energy and public lands in mind. At the time of this writing the Sierra Club has not taken an official position on the overall legislation; however, we know that there are many provisions we support, such as the designation of the new Mojave Trails National Monument, and others we hope to see modified as the bill continues through the legislative process. National committees will be reviewing the bill in the coming weeks.
One title of the bill, Title 3, is wholly related to renewable energy; but other provisions address it throughout the legislation. This review will cover the issues in the order that they appear in the bill.
Sec. 101, AMENDMENTS TO CDPA; Title XIII MOJAVE TRAILS NM: Secs. 1302, 1303, 1304 (Establishment, Management, and Uses of the Monument), provisions related to utility rights of way and transmission.
The bill’s language regarding the purposes of the Monument is somewhat unclear where utility rights of way (ROW) or corridors within the Monument are concerned. The bill allows only those uses that further the purposes of the Monument, all of which have to do with preservation and enjoyment; but states that uses must “not interfere” with utility ROWs described under section 1304(f). As described below, the bill properly restricts new lines and uses in the Monuments significantly. Therefore, the bill should clearly state that the existing utility ROWs described under the Uses section are not inconsistent with the Monument purposes to avoid misinterpretation.
The language on Monument management plans requires that they “address the need for and, as necessary, establish plans for, the installation, construction, and maintenance of public utility energy transport facilities within rights-of-way in the Monument, including provisions that require that the activities be conducted in a manner that minimizes the impact on Monument resources (including resources relating to the ecological, cultural, historic, and scenic viewshed of the Monument)….”
Sierra Club supports allowing transmission in existing ROW/corridors in the Monument because they may be necessary to transmit properly sited renewable energy to population centers in southern California. We prefer that transmission be approached very cautiously, starting by fully using existing towers and corridors and only adding new lines as necessary, prioritizing lines adjacent to existing ones first; Sen. Feinstein’s bill reflects this cautionary approach.
The language specific to utility ROWs under the “Uses” section allows for the “maintenance, upgrade, expansion, or development of energy transport facilities within the Monument that are critical to reducing the effects of climate change on the environment.” It permits already existing ROWs to be upgraded or expanded. New rights of way, or new uses within existing rights of way, would only be allowed within utility corridors that are designated as of the date of enactment. The bill underscores that proposed new ROWs or uses would require NEPA review and approval; further, the lead Federal agency would have to certify that the use is consistent with other laws, the purposes of the Monument, and the management plan of the Monument.
The bill allows for movement of an approved transmission corridor out of (we assume) the Route 66 corridor to another location within the Monument, and we understand this is to preserve scenic views from the highway. There is also a specific provision allowing vehicular access within the Monument for renewable energy in one area. We understand this is meant for Cadiz if they develop solar on their lands to the west of the Monument. Obviously, this road access allowed by legislation would not affect their need to follow all environmental regulatory processes and laws to develop solar generating plants.
Sec. 1307: Renewable Energy Right-of-Way Applications.
We have advocated granting solar applicants who will need to withdraw their energy proposals from the Monuments a “right of first refusal” to apply for replacement sites in solar energy zones identified in the desert, and the bill has such a provision. A small number of companies have invested substantially in areas BLM encouraged them to pursue (but are located within a proposed Monument), and leveling the playing field for these applicants is appropriate and fair. This would not change their need to comply with all environmental laws and regulations, both state and federal.
The section requires that the applicants have in fact invested resources toward planning and developing their site, which is intended to weed out any speculative applicants from getting this benefit.
TITLE XI—SAND TO SNOW MONUMENT
The language in this section mirrors provisions in the Desert Trails Monument sections, so the issues related to transmission are the same.
TITLE XIX—MISCELLANEOUS
Sec. 1901. State land transfers and exchanges. The purpose of this section is to consolidate federal lands, especially within national parks and wildernesses; and to transfer to the state an equivalent amount of lands that could be used for revenue generation or other purposes, renewable energy development being one, in locations outside protected areas. Federal land managers want this consolidation, and it may spur renewable energy development in appropriate areas (disturbed lands).
Sec. 1903. Climate Change and Wildlife Corridors.
This section is designed to study impacts to the CDCA due to climate change including impacts to species, vegetation, air quality and water quality and quantity. It seeks recommendations especially regarding biological connectivity and wildlife corridors. Its findings and recommendations must be included in impact analyses for rights of way in the CDCA and incorporated into land management plans, which will be beneficial for addressing climate change as it impacts the California deserts.
Sec. 1904. Prohibited Uses of Donated and Acquired Land.
This section requires that lands donated for conservation or purchased through the Land and Water Conservation Fund remain protected for conservation purposes, and therefore prohibits energy development on these lands. It includes land within the Monument boundaries and also covers any such parcels in the CDCA. The latter includes parcels of land that were donated by a private donor or acquired through the Land and Water Conservation Fund (LWCF) for conservation purposes, the so-called checkerboard “Catellus lands.”
The language here on “deed restrictions” allows the agency to agree to restrictions on uses and management of lands accepted for acquisition. This is already allowed in law and does not require legislation, but the BLM has not been willing to agree to such deed restrictions for conservation purposes in the case of the donated lands in the California desert. Having the language in a statute specific to the CDCA may push the agencies to enter into such agreements where they have been unwilling to do so in the past.
The donated or LWCF-acquired lands which were included in proposals for renewable energy development in the Monuments are mainly being abandoned by generators, who see the writing on the wall even though the bill has not become law yet. For projects outside the Monuments, this provision grandfathers in permission for renewable energy projects that had made applications by late 2009 to proceed through the permitting process. Again, this is a problem caused by the BLM’s directing companies to inappropriate locations during the previous Administration.
TITLE II—DESERT RENEWABLE ENERGY PERMITTING
Sec. 201. Renewable Energy Coordination Offices to improve Federal Permit Coordination for Renewable Energy [amendments to Energy Policy Act of 2005]
Unlike most of the rest of the bill, this title applies to ten Western states, not just California. Its sections are focused on establishing and speeding up processes to site renewable energy on public lands in an environmentally responsible way.
(j.) This section requires the Secretary to set up at least one district or field office to serve as the Renewable Energy Coordination Office (RECO) for federal permits in each of 10 Western states. It also requires that a Memorandum of Understanding (MOU) including Interior, Agriculture, Defense, and Corps of Engineers be signed to coordinate among themselves and with the states to work together for a single, joint process for permitting renewable energy projects. The MOU would lay out milestones toward progress and require one lead agency to be responsible for establishing and enforcing schedules. These are important concepts, the primary purposes being to rationalize, clarify and simplify the process for permitting renewable energy projects and to minimize duplication and delays. Much of what’s included in this section is already being undertaken, especially in California.
(k.) Distribution of Solar and Wind Energy Income: this codifies where any income to the federal government from solar and wind generation will be allocated: 25% to the state in which the facility resides and 25% to the local county; 40% for the first 10 years to a special fund called the ‘BLM Permit Processing Improvement Fund’–beyond that time, that 40% goes to the LWCF; and 10% would go into a new fund called the ‘Solar Energy Land Reclamation, Restoration, and Mitigation Fund.’
It is not clear in the legislation what the mechanism for collecting income will be or how it will be determined. Possible ways this could be addressed include an annual lease fee for the use of the right of way or a charge on electricity produced (similar to a royalty payment). In any case, the Interior Department is currently deliberating over how they plan to assess and collect fees.
Local states and counties in rural areas naturally support receiving some of the income from projects; the provision in the bill has no restriction on what states or counties do with the money other than submitting an annual report to Congress. Most environmental groups would like the majority of the income to be made available for conservation and mitigation purposes, as well as for ensuring proper administrative permitting processes. A provision for local income can help local communities, but it also has the potential to contribute to a boom/bust local economy, and resultant gaps in local funding (similar to the problem of county schools’ funding being tied to federal timber receipts), since eventually some or all of these projects may be terminated; the bill does not address this concern.
Section (k)(3) creates a new fund, the Solar Energy Land Reclamation, Restoration and Mitigation Fund; this fund is to be used for reclaiming and restoring land used for solar energy production and other facilities, and for mitigation including protecting other sensitive public land if restoration is not possible. This fund can grow up to $50 million; amounts above that would go to the general Treasury. It’s unclear if or how this relates to the bonding section later in the bill, which requires “all energy projects on Federal land to provide a secure bond or other financial mechanism, to address future decommissioning and other costs associated with the restoration of public land.”
201(b) amends the Mineral Leasing Act so that the Permit Processing Improvement Fund (largely from oil and gas income) may also be made available to coordinate renewable energy use authorizations, process permits, cover consultations and Habitat Conservation Plan work by USFWS for renewable projects, and coordinate permits for projects participating in a new Mitigation Bank Program authorized by this legislation (see below for more on that). We strongly support making these funds available to agencies to properly and carefully process renewable energy development permits and wildlife analyses, permits, consultation and plans. The effort to site large scale renewables on public land is ramping up fast and we need more personnel to evaluate projects and do it properly as well as to speed the process up where delays are due to insufficient personnel and resources. The funding would be available to both federal and state agencies in the ten states cited.
Sec. 202. Deadlines for wind and solar right of way use authorizations.
Unfortunately, this section would codify the current BLM approach to solar and wind projects, which entails granting rights-of-way rather than issuing permits to develop. We prefer the latter because it enables BLM to establish a leasing and royalty program from which revenues for resource conservation and permitting of future projects can flow. The main purposes of this section on deadlines are to address the large backlog of permit applications for renewable projects on federal land and to provide a rational approach to applications that range from those that are well designed, have a power purchase agreement and are well along in the process to those that are merely speculative in nature, with no power purchase agreement or real resources invested toward actual development.
We have repeatedly urged the DOI to prioritize projects with merit and the fewest environmental conflicts. The approach of treating all applications equally is a waste of resources and unnecessarily delays focusing on the truly viable projects. While achieving this result through administrative action would be preferable to legislating it, the language of this section, outlined below, would give clear direction to the agencies and we support it.
The section requires the Interior Secretary to contact an applicant within 60 days of receipt of a ROW application to notify them that the application is complete or to point out in detail those areas that have not been adequately addressed. For those that are incomplete, further deadlines may be granted to meet the terms. The section also requires that once a completed application is submitted, the Secretary must issue a Notice of Intent under NEPA and any other laws within 30 days.
We believe both these deadlines are unrealistic, although we agree hard but realistic deadlines should be set. Achieving that does not require a new statute; but having the language in a statute sends a strong message to the agencies and the Administration.
The section goes on to lay out deadlines for completing EAs or EISs (15 months) and USFWS consultation. However, the Secretary can miss the NEPA deadline by simply stating it can’t be met, so the deadlines are not enforceable; it appears the main purpose is to push the agencies to make decisions faster. There is also a deadline for final approval or denial of the permit 90 days after the FEIS or final EA.
The Secretary is also required (‘shall’) to deny applications for ROWs if deadlines for data submission, etc. by generators are not met, materials are inadequate, the location is not available or prioritized for development, or the project does not comply with laws and regulations. Since many applications are wending their way slowing through the process even though they have little or no merit or likelihood of reaching completion, this provision would allow the agencies to focus their attention on those that are serious.
The bill further states the Secretary may deny applications on the basis of a “high public resource conflict,” defined as “an expected impact to public resource values (including wilderness quality land [other than visual and noise impacts], threatened and endangered species and habitat of the species, State-listed species, sensitive species listed by the Bureau of Land Management, ground water resources, and cultural and historic resources) that, as determined by the Secretary, cannot be addressed through the use of best management practices or other measures.” This is an important concept that we strongly support to weed out bad projects. It only addresses the BLM in this section, and there are also renewable energy projects on Forest Service land that might be appropriate to cover in such a provision.
The language further stipulates that the Secretary may prioritize ROW use applications that are proposed in places that “will not result in a high public resource conflicts [sic](based on the best available information) and will access existing electric transmission and utility corridor rights-of-way.” As noted, we strongly support prioritizing along these lines in order to site in the least conflict places and minimize any new transmission.
This section also requires applicants to deposit 50% of the sum the Secretary deems necessary for agencies to evaluate the application once the application is accepted (that is, when it is complete). If an application should be withdrawn, any unspent funds would be returned to the applicant. This is another means to weed out speculative applications, a goal we support.
Sec. 203. Programmatic EISs and Land Use Planning.
This section requires three separate Programmatic EISs for renewable energy development. The first requires that a Solar PEIS for the BLM (already underway) be finalized within one year from date of enactment. Related land use plans in all the regions covered by the PEIS would also need to be amended within that same year. This is an unrealistic timeframe, especially for the latter, depending of course on how long it takes for the bill to become law.
The second PEIS would require the Secretary of Agriculture to develop a PEIS for solar, biomass, and wind energy development on all Forest Service land. The language is less explicit than used in describing the BLM PEIS; for example, it does not require designation of zones where such development would be focused. This PEIS would need to be completed by 18 months post-enactment and related land use plans amended “immediately thereafter.” This is a very unrealistic deadline for such a large-scale, complex analysis which would cover national forests from Maine to California. Further, the use of biomass as a “renewable” fuel or a strategy to reduce carbon emissions is controversial. Such a PEIS may be appropriate but we would want a more comprehensive approach taking into account input from other regions of the country.
The third PEIS would analyze military lands “in the Mojave and Colorado Deserts of the States of Arizona, California, and Nevada” to consider potential impacts of renewable energy development and consistency with military objectives. This also has an 18 month deadline with amendment of any base management plans “upon completion.” We support this provision as some military lands are degraded and may provide good locations for renewables, particularly solar. At the same time, many military lands provide important habitat values, so these would need to be considered in the PEIS and project NEPA reviews.
Sec. 204. Military Installations Study.
This section appears to provide much more detail on what the military installations study referenced in the prior section would include but is limited to California and Nevada; thus, it may be a separate study. This needs to be clarified.
Sec. 205. Habitat Mitigation Zones.
This section would establish a pilot project creating “habitat mitigation zones” of at least 200,000 acres on public lands in the CDCA to mitigate impacts of renewable energy projects on private land. The purpose of the zones is “to mitigate the impacts of qualified renewable energy projects on endangered or threatened species that can be mitigated most effectively through management actions undertaken on the eligible land.” Actions include:
“(A) Enhanced stewardship.
(B) Restoration actions.
(C) The mitigation of abandoned mines.
(D) The conduct of surveys of certain species.
(E) Monitoring the effectiveness of mitigation activities.
(F) Invasive species control.
(G) Law enforcement initiatives.
(H) Acquisition from willing sellers of non-Federal acres within a potential mitigation zone for inclusion in the mitigation zone.
(I) Acquisition from willing sellers of an interest in non-Federal acres within a potential mitigation zone through use of permanent conservation easements.
(J) Other active endangered species protection and management initiatives, as reflected in the zone management plan and adaptive management program.”
The intention behind this is to be able to conserve large blocks of contiguous habitat that together provide “superior mitigation over piecemeal, project-by-project mitigation strategies.” In addition, the lands so conserved would be places not currently being managed for biodiversity or other conservation purposes, not having high potential for renewable energy development, and may be places degraded from other uses such as mining, OHV use, and grazing.
The section establishes a California Desert Mitigation Bank Pilot Program which can use funds both to acquire non-federal acres in potential mitigation zones and to manage such zones actively for biodiversity and/or for specific habitat needs. Projects allowed to use the program for mitigation must show they have “made sufficient efforts” to minimize or avoid impacts to threatened or endangered species in their project. Payments from accepted applicants must be: “the higher of–
(i) 75 percent of the estimated fair market cost of purchasing the required acreage from a non-Federal landowner (based on statistics of the National Agricultural Statistical Service), as determined by the Secretary; or
(ii) the cost, as determined by the Secretary, of managing a parcel of eligible land of a size equal to the required acreage in a manner consistent with the needs of endangered or threatened species.”
Applications to participate in this program will trigger a Section 7 consultation with USFWS for the Endangered Species Act, which anecdotally has been a quicker process than Section 10 consultations for private lands in the CDCA. A Mitigation Council will guide the development and planning for the pilot program; this includes the following:
2 third-party scientists who are experts in desert ecology, wildlife biology, or botany and have a strong knowledge of endangered species, threatened species, or natural resources in the California Desert Conservation Area; 1 representative of the California Department of Fish and Game; 1 representative of the Department of Defense, selected by the Secretary of Defense; 2 representatives of nonprofit organizations whose mission is to protect the ecology, botany, or land of the California desert; 2 representatives of the renewable energy industry with a background in permitting under the Endangered Species Act; and 1 representative of the county government in which the zone is located.
Each mitigation zone must have a management plan including “a description of the habitat and species values for which the land is being conserved; measurable goals and objectives for habitat and species enhancement; proposed strategies for achieving goals and objectives; and monitoring and observation plans capable of assessing progress towards goals and objectives on at least an annual basis; recommendations for how and to whom disbursements from the Fund should be made; an annual evaluation of progress towards achieving goals and objectives, including quantitative and qualitative analysis; and a description of a process for adapting management and strategy to incorporate knowledge gained as a result of the annual evaluation.”
The Secretary of Interior reviews and decides upon acceptance of applications to participate in the program.
We are open to considering innovative mitigation concepts that maximize the conservation of species and habitats. The proposal included in this section is controversial with some environmental organizations because it uses public lands to mitigate for impacts on private lands. However, the intention is to encourage large scale development on private lands, which may result in more conservation and less impact on the public lands. We have concerns about this provision and its potential to be effective, but support the goal to encourage more use of disturbed private lands for this kind of development. A program like this could enhance public land habitat by removing grazing and other harmful uses. Nonetheless, many feel that it would be very difficult to achieve the long-term (basically permanent) commitment to manage such lands for habitat purposes, or to ensure that funds would be spent only on habitat protection and enhancement.
To achieve the same objective of locating projects on disturbed private land we have also urged Sen. Feinstein to explore incentives to help encourage the consolidation of small private land holdings for the purpose of renewable energy development, but that is not included in the bill.
Sec. 206. Bonding.
This section requires “all energy projects on Federal land to provide a secure bond or other financial mechanism, to address future decommissioning and other costs associated with the restoration of public land.” This is critical and we support it.
Sec. 207. Meteorological Site Testing and Monitoring.
This section allows “met towers” (which analyze meteorological conditions for possible wind energy development) that cover less than one acre of land and disturb less than five acres to connect to a right-of-way and meet other conditions for minimizing road access and heavy equipment use to be granted a Categorical Exclusion (CE) from NEPA. We oppose such a blanket Categorical Exclusion from NEPA. It is not needed since the agency already has the authority to issue CEs on a case by case basis, but more importantly many if not most of such installations may require a higher level of review under NEPA.
Sec. 208. Report on Renewable Energy Permitting in Western States.
This section details what elements must be included in a report to Congress every 180 days on how the numerous requirements in this legislation have been carried out.
Sec. 209. Support for Qualified Advanced Electric Transmission Manufacturing Plants, Qualified High Efficiency Transmission Property, and Qualified Advanced Electric Transmission Property.
This section authorizes an appropriation for matching grants totaling up to $100 million for advanced technology transmission, transmission lines, substations and similar facilities. The main reasons cited are to build and test new technologies that would increase the efficiency of high voltage power lines and minimize the need to build new towers and create new transmission corridors. We strongly support this provision since we want to minimize construction of new transmission and related facilities wherever possible.