By Laura Godfrey, Joshua Marnitz and Janice Schneider

On July 27, 2012, the Bureau of Land Management (BLM) and the U.S. Department of Energy (DOE) as joint lead agencies announced the availability of the Final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States (Final Solar PEIS).  77 Fed. Reg. 44267 (July 27, 2012).  Release of the Final Solar PEIS represents the near-culmination of a process begun by BLM and DOE (the Agencies) in May 2008 to address both utility-scale solar energy development (i.e., facilities with generating capacities typically greater than 20 megawatts) on BLM land and DOE programmatic environmental guidance for solar energy projects.  Publication of the Notice of Availability (NOA) of the Final Solar PEIS by the U.S. Environmental Protection Agency initiated a 30-day protest period on associated BLM plan amendments contained in the Final Solar PEIS that ends August 27, 2012, after which the Agencies will issue a Record of Decision (ROD).  While the NOA does not trigger a separate formal public comment period, the Agencies may choose to review any comments submitted at this time and use them to inform the RODs.

The Agencies have prepared a condensed Final Solar PEIS, substantially revising certain chapters but only updating others, with the stated goals of reducing the length of the document and facilitating an efficient review by cooperating agencies and the public.  While shorter, the Final Solar PEIS adopts many of the key elements of the Supplement to the Draft Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States (Draft Solar PEIS) released last year.  76 Fed. Reg. 66958 (Oct. 28, 2011) (Supplement).  As discussed previously on this blog and in a Client Alert, this decision by the Agencies to incorporate elements of the Supplement into the Final Solar PEIS has the practical effect of dramatically reducing the amount of federal land available for solar energy development in the western United States.

The Agencies’ planning effort focuses on identifying the locations most suitable for utility-scale solar energy development to allow the permitting of future projects on public lands to proceed in a more efficient, standardized, and environmentally responsible manner.  To that end, the BLM preferred alternative identified in both the Supplement and the Final Solar PEIS attempts to concentrate utility-scale solar energy development in 17 solar energy zones (SEZs) spanning roughly 285,000 acres in Arizona, California, Colorado, Nevada, New Mexico and Utah.  The Draft Solar PEIS, by contrast, identified 24 SEZs covering approximately 677,000 acres of land in the same six southwestern states.  The Final Solar PEIS adopts the same list of SEZs, covering roughly the same areas, as the Supplement.  However, BLM worked with the National Park Service (NPS) and the U.S. Fish and Wildlife Service (FWS) between the release of the Supplement and the Final Solar PEIS to exclude lands in close proximity to NPS units and overlapping priority desert tortoise connectivity habitat.

While BLM’s preferred alternative prioritizes and provides incentives for siting utility-scale solar development within SEZs, such as faster and easier permitting, improved mitigation strategies, and economic incentives, the Final Solar PEIS maintains the variance process outlined in the Supplement to accommodate responsible development on approximately 19 million acres outside the SEZs (roughly 1 million fewer acres than previously proposed for the variance areas) and grandfather provisions for certain pending applications for projects located outside the SEZs and variance areas.  The Final Solar PEIS also retains the Supplement’s protocol for identifying new SEZs, modifying it only slightly to include more defined roles for state and local government involvement and consideration of local plans and policies.  The new SEZ identification protocol requires the Agencies to assess the need for additional SEZs at least every five years in each of the six states; however, stakeholders can petition for consideration of new zones at any time.

Other key elements of the Final Solar PEIS include:

• Exclusion of 79 million acres from solar energy development (in so-called “exclusion” areas that are broader than initially proposed in the Supplement);
• Identification of design features (best practices) for solar energy development; and
• Establishment of a framework for regional mitigation plans and a strategy for monitoring and adaptive management.

As before, utility-scale solar energy developers and those providing financing for these projects are advised to pay attention to this process because it will impact not only where—but also how easily—solar projects can be sited on public lands.  We will provide additional details about the Final Solar PEIS should the Agencies elect to adopt it through a formal ROD.