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DRECP under review in an effort to alleviate burdens on energy development.

By Marc T. Campopiano, Joshua T. Bledsoe, Jennifer K. Roy, and James Erselius

The Bureau of Land Management (BLM) recently issued a notice of intent to review the Desert Renewable Energy Conservation Plan (DRECP) for potential burdens on domestic energy production in California. The BLM issued the notice on February 2, 2018, in response to Executive Order (EO) 13783, “Promoting Energy Independence and Economic Growth.” EO 13783 was issued on March 28, 2017, and requires the heads of federal agencies to review all existing agency actions that “potentially burden the development or use of domestically produced energy resources.”

Finalized in 2016, the DRECP established a framework to streamline permitting for renewable energy projects on public lands in the California Mojave and Colorado/Sonoran desert region. The DRECP covers renewable energy development activities, including solar, wind, and geothermal projects, as well as transmission facilities that service renewable energy projects. As discussed in a previous post, concerns from local agencies, industry, and environmental groups caused state and federal agencies to narrow DRECP’s focus to public lands only.

The corresponding Land Use Plan Amendment (LUPA), issued when the DRECP was finalized, affects land use planning decisions for all of the 10.8 million acres of federal lands within the 22 million total acres covered under the DRECP. The LUPA set aside certain BLM-managed lands for conservation and recreation, and identified priority areas for renewable energy development. As detailed in a prior post, the approved LUPA designates 388,000 acres of Development Focus Areas, which are lands identified as having high-quality solar, wind, and geothermal energy potential and access to transmission. In addition to Development Focus Areas, the approved LUPA designates: 40,000 acres of Variance Process Lands for renewable energy development; approximately 6.5 million acres for conservation; approximately 3.6 million acres for recreation; and 419,000 acres of General Public Lands, which lack a specific land allocation or designation. A land use plan amendment is needed to develop renewable energy in General Public Lands areas.

By Janice Schneider, Sara Orr, Jennifer Roy and James Erselius

Reversing a long-standing federal legal position, the US Interior Department recently stated that the Migratory Bird Treaty Act (MBTA) does not impose liability for the incidental take of protected birds. The 41-page Solicitor’s Opinion (number M-37050) withdraws and replaces a prior Solicitor’s Opinion (number M-37041), issued during the Obama administration. The prior Solicitor’s Opinion had interpreted the MBTA to prohibit “incidental take,” and concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental take and killing.” The new legal position means that the Trump administration will not consider the non-directed and unintentional death of birds by energy companies and other businesses in the course of their otherwise lawful activities to be a crime under the MBTA.

The MBTA, enacted in 1918, prohibits the take of over 1,000 species of birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define take as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts. Violations of the MBTA are criminal offenses, and courts have held that the MBTA imposes strict liability, regardless of intent. Courts have debated, however, whether the scope of strict liability under the MBTA extends to the incidental take of migratory birds resulting from otherwise lawful activities. As discussed in a previous post, the Fifth Circuit joined courts in the Eighth and Ninth Circuits in ruling that the MBTA does not prohibit incidental take. In contrast, other circuits, such as the Second and Tenth, have extended liability under the MBTA to incidental take in at least some instances.

By Janice Schneider, Joel Beauvais, Stacey VanBelleghem, Jennifer Roy, and Francesca Bochner

On March 19, 2017, 52 new or reissued nationwide permits (NWPs) for discharges into “waters of the United States,” issued pursuant to Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act went into effect. The U.S. Army Corps of Engineers (Corps) requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters (i.e., “waters of the United States,” including wetlands). The NWPs – which are used to permit tens of thousands of new projects each year – cover a broad range of activities, including development of oil and gas pipelines, transmission and other utility lines, linear transportation projects, renewable energy, coal mining activities, and residential development. The Corps developed the NWPs as programmatic permits to expedite approval of specific types of activities deemed to have minimal environmental impacts. Seeking authorization under an NWP is less expensive and less time-consuming than obtaining an individual permit.

The prior NWPs were issued in March 2012 and expired on March 18, 2017. In the new NWPs, the Army Corps: (1) reissued all 50 of its existing NWPs, with revisions to twenty-seven; (2) issued two new permits; and (3) added one new general condition. The new NWPs include a grandfather provision that allows activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, to have until March 18, 2018, to complete the activity under the terms and conditions of the 2012 NWP. Activities that have not commenced by March 18, 2017, and/or will not be complete by March 18, 2018, must seek authorization under the new NWPs.

By Michael Gergen, Tyler Brown, David Pettit and Christopher Randall

At the most recent meeting of the Board of Directors of the California Independent System Operator (CAISO) held on February 16, 2017, the President and Chief Executive Officer of the CAISO reported that because of the “bountiful hydro conditions expected this year and significant additional solar installations both in the form of central station and on rooftops” in California, the CAISO “expects to see significant excess energy production this coming spring.” As a result, the CAISO is forecasting that it may “need to curtail from 6,000 MW to 8,000 MW.”

Based on the CAISO’s Monthly Market Performance Reports, it doesn’t appear that there were any significant curtailments prior to a few isolated days in the Spring of 2015, the Spring and Fall of 2016, and this Winter. This stands in marked contrast to the scale of curtailments that appear to be expected for this Spring. Moreover, in 2014 the CAISO reported that by 2024 it expects maximum hourly curtailments of over 13,000 MW in California under a scenario where the Renewables Portfolio Standard (RPS) targets 40 percent of retail sales by 2024. (This RPS requirement was enacted in October 2015.)

CAISO Graphic depicting renewable curtailment by resource type

By Sara Orr, Jennifer Roy and Francesca Bochner

On December 14, 2016, the US Fish and Wildlife Service (FWS) finalized its proposed revisions to the Eagle Rule (Final Rule) and released its Record of Decision (ROD). The Final Rule allows companies and others to obtain 30-year incidental take permits under the Bald and Golden Eagle Protection Act of 1940 (the Act) in exchange for committing to conservation measures designed to reduce impacts to eagles.

As discussed in our previous articles (here and here), this is FWS’ second attempt at revising the Eagle Rule to allow for 30-year permit terms. The draft version of the revisions and the Draft Programmatic Environmental Impact Statement (DPEIS) were originally released on May 2, 2016. FWS accepted public comments on the proposed revisions and DPEIS until July 5, 2016, receiving over 700 comments from other agencies, public interest groups, industry organizations, and private citizens.

By Marc Campopiano, Josh Bledsoe, Jennifer Roy, and James Erselius

Phase I of the Desert Renewable Energy Conservation Plan (DRECP) has now been approved, paving the way for streamlined permitting and environmental review of qualified renewable energy projects on Bureau of Land Management (BLM)-administered lands in the Mojave and Colorado/Sonoran desert regions of Southern California.

As discussed in a previous post, the four lead agencies responsible for preparing the DRECP introduced a phased approach to implementing the DRECP in March 2015. After receiving public comments, BLM released a Proposed Land Use Plan Amendment (LUPA) and Final Environmental Impact Statement for Phase I—the DRECP’s federal land component—in November 2015. On September 14, 2016, BLM signed the Record of Decision (ROD) approving the LUPA.

By Paul Davies and Andrew Westgate.

According to a recent report released by Clean Energy Pipeline, global clean energy backing in the first half of 2016 totalled US$116.4 billion. China was the largest investor, financing US$15.3 billion worth of solar and wind projects and accounting for nearly 30% of the world’s total solar and wind investment.

Yet despite its significant investment, the output of China’s push into renewable technologies continues to be limited by its grid system, and subsequent curtailment. Curtailment occurs when energy is available, but the operator does not allow that energy to be delivered to the grid because there is no demand and/or the energy cannot be stored. According to the central government, nearly 15% of wind-generated electricity went unused in 2015. Also contributing to this challenge is the disconnect between where energy is generated and where it is needed. As an example, in 2014, 46% of wind power curtailment was caused by a failure to use electricity generated in the province of Gansu.

By Sara Orr and Bobbi-Jo Dobush

On July 7, 2016, the US Fish and Wildlife Service (FWS) announced its Record of Decision (ROD) for the Upper Great Plains Wind Energy Programmatic Environmental Impact Statement (PEIS).[1] This is the final step in a process that US FWS, along with Western Area Power Administration (Western), embarked upon in 2010 to streamline the environmental review process for wind energy projects in the Upper Great Plains (UPG).[2] The process applies to wind energy projects in Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota that would interconnect to Western’s transmission facilities or require the US FWS to consider an easement exchange to accommodate placement of project facilities.

Western, which is responsible for marketing and delivering wholesale power in the western United States and is the joint lead agency on the PEIS, announced its ROD adopting Alternative 1 on August 26, 2015.[3] Eleven months later, US FWS made its final decision and also adopted Alternative 1 of the PEIS which supports US FWS participation in easement exchanges for wind development and provides for expedited environmental reviews (including review pursuant to the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA)) if developers follow specified best management practices, minimization and mitigation measures. Now that US FWS has issued its Record of Decision, it may implement the PEIS when permitting wind energy projects involving easement swaps within Western’s Upper Great Plains region.

By Michael Gergen, David Pettit and Tara Rice

On June 16, 2016, the White House hosted a Summit on Scaling Renewable Energy and Storage with Smart Markets. As a backdrop to the Summit, the Obama Administration announced new executive actions and 33 public and private sector commitments intended to accelerate the grid integration of renewable energy and storage. Together, these actions are expected to result in at least 1.3 gigawatts of energy storage procurement or deployment within the next five years. 

By Sara Orr, Daniel Brunton, Marc Campopiano and Andrea Hogan

On April 15, 2016, the US Fish and Wildlife Service (FWS) issued its Draft Midwest Wind Energy Multi-Species Habitat Conservation Plan (Plan) and Draft Environmental Impact Statement (EIS) proposing a regional approach to Endangered Species Act (ESA) compliance process in response to the growth of Midwestern wind energy development. The Plan is intended to streamline the incidental take permitting process for certain bird and bat species.  Comments on the draft Plan and draft EIS are due on July 14, 2016.

Background

With its abundant wind resources, the American Midwest is an attractive region for renewable energy development. In addition to state and local permitting requirements, Midwestern wind energy facilities must also comply with federal natural resource laws, including ESA and the Bald and Golden Eagle Protection Act (Eagle Act). Under Section 10 of the ESA, the FWS may issue permits to authorize the “incidental take” of federally listed fish and wildlife, including bird and bat species potentially affected by wind energy development. “Incidental take” is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Likewise, under the Eagle Act, the FWS may issue a permit to authorize take of individual eagles and their nests.