By Marc Campopiano, Joshua T. Bledsoe, Jennifer Roy, James Erselius
On February 2, 2018, the Bureau of Land Management (BLM) issued a notice of intent to review the Desert Renewable Energy Conservation Plan (DRECP) for potential burdens on domestic energy production in California 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. Renewable energy development activities covered by the DRECP include solar, wind, and geothermal projects, as well as transmission facilities that service renewable energy projects. In March 2015, 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. 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.
The February 2 notice initiated a public scoping period for potential amendments to the DRECP and associated National Environmental Policy Act (NEPA) documents. Accordingly, BLM announced that it will hold eight public scoping meetings, taking place in the following California cities: Lone Pine; Ridgecrest; Hesperia; El Centro; Sacramento; Bakersfield; and Palm Desert. The public scoping period closed on March 22, 2018, 15 days after the last public meeting.
According to the notice, BLM seeks to reduce the burdens on energy development by looking at how the current DRECP’s land-use designations potentially will affect commercial-scale renewable energy projects. For example, the notice of intent seeks comments on “increasing opportunities for increased renewable energy development, recreational and off-highway vehicle (OHV) access, mining access, and grazing.”
In addition, BLM indicates it is reopening the DRECP in response to EO 13281, “Streamlining and Expediting Requests to Locate Broadband Facilities in Rural America,” which was signed on January 8, 2018. Accordingly, BLM is seeking comments on potential impacts of land use designations, land disturbance limits, and visual management classifications on the deployment of future communications infrastructure.
Although BLM is taking comments on whether the DRECP should be amended, any such amendments would take time and likely require new environmental analysis under NEPA. Indeed, the notice of intent states that it “initiates the public scoping process for the potential plan amendments and associated [NEPA] documents.” Moreover, any proposed amendments are likely to be controversial and face opposition, as the BLM’s approval of the DRECP finalized in 2016 was eight years in the making.
Previously, the U.S. Department of Interior (DOI) issued a Review of the Department of the Interior Actions that Potentially Burden Domestic Energy report (DOI Burden Report), and the Forest Service issued a Final Report Pursuant to Executive Order 13783 on Promoting Energy Independence and Economic Growth regarding EO 13783 and the effect certain other existing federal regulations and policies may have on the energy industry. The recent re-opening of the DRECP appears to be in line with these and other federal efforts intended to reduce regulatory burdens on the energy industry.
iFor more than 40 years, Latham & Watkins’ Environment, Land & Resources lawyers have advised clients on complex regulatory, litigation and transnational matters stemming from cutting-edge environmental issues. For more information and commentary on climate change, renewable energy and clean technology, please visit Latham’s Clean Energy Law Report at: www.cleanenergylawreport. com