# Rights-of-Way, Leasing, and Operations for Renewable Energy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-08099 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 1, 2024 - **Citation:** 89 FR 35634 ## Text DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 2800 [BLM_HQ_FRN_MO# 4500177145] RIN 1004-AE78 Rights-of-Way, Leasing, and Operations for Renewable Energy AGENCY: Bureau of Land Management, Interior. ACTION: Final rule. SUMMARY: This final rule updates procedures governing the BLM's renewable energy and right-of-way programs, focusing on two main topics. The first topic is solar and wind energy generation rents and fees, implementing new authority from the Energy Act of 2020 to “reduce acreage rental rates and capacity fees, or both, for existing and new wind and solar authorizations” and making certain findings required by the statute. The second topic is expanding agency discretion to process applications for solar and wind energy generation rights-of-way inside designated leasing areas (DLAs). In addition to these two main topics, this final rule makes technical changes, corrections, and clarifications to the regulations. This final rule will update the BLM's procedures governing the BLM's administration of rights-of-way issued under Title V of the Federal Land Policy and Management Act (FLPMA), including for solar and wind energy applications and development authorizations. DATES: This rule is effective July 1, 2024. FOR FURTHER INFORMATION CONTACT: Jayme Lopez, Interagency Coordination Liaison, by phone at (520) 235-4581, or by email at energy@blm.gov for information relating to the BLM Renewable Energy programs and information about the final rule. Please use “RIN 1004-AE78” in the subject line. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. SUPPLEMENTARY INFORMATION: I. Executive Summary II. Background III. Discussion of Public Comments on the Proposed Rule IV. Section-by-Section Discussion V. Procedural Matters I. Executive Summary In 2021, the Bureau of Land Management (BLM) initiated preliminary activities related to rulemaking through listening sessions seeking public comment on the BLM's potential use of the Energy Act of 2020 (43 U.S.C. 3003) authority to “reduce acreage rental rates and capacity fees” to “promote the greatest use of wind and solar energy resources.” In May 2022, the BLM published BLM Manual section 2806.60 as interim guidance to implement that authority from the Energy Act of 2020 pending completion of this final rule. On June 16, 2023, the BLM published a proposed rule (88 FR 39726 1 ) in the Federal Register , that, among other things, proposed updates to the BLM's methodology for determining acreage rents and capacity fees for solar and wind energy development projects, including providing opportunities for reductions to rents and fees under the authority of the Energy Act of 2020. The BLM also proposed more flexibility in how the BLM processes applications for solar and wind energy development inside DLAs, and updates to how to prioritize solar and wind energy applications. The proposed rule also suggested technical changes, corrections, and clarifications to the existing right-of-way regulations. After considering comments on the proposed rule and other factors, the BLM prepared this final rule. 1 https://www.federalregister.gov/documents/2023/06/16/2023-12178/rights-of-way-leasing-and-operations-for-renewable-energy. II. Background The BLM's governing regulations for rights-of-way, including for solar and wind energy generation, are found at Title 43 CFR part 2800. These regulations were last comprehensively updated by a final rule published in the Federal Register on December 19, 2016, “Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development and Technical Changes and Corrections” (81 FR 92122). That final rule built upon existing rights-of-way regulations and policies to expand BLM's ability to responsibly facilitate solar and wind energy development. Most recently, the BLM amended components of 43 CFR part 2800 under its final rule, “Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way,” (89 FR 25922) on April 12, 2024. That final rule updated BLM regulations to enhance the communications uses program, update its cost recovery fee schedules, and add provisions governing the development and approval of operations, maintenance, and fire prevention plans and agreements for rights-of-way for electric transmission and distribution facilities ( i.e., powerlines). That final rule also included technical changes to certain sections that this renewable energy rule proposed to make changes to, as will be discussed further in the section-by-section discussion of this final rule. Solar and Wind Energy Rents and Fees Title V of FLPMA (43 U.S.C. 1761-1772) generally requires grant holders, leaseholders, or both (holders) to “pay in advance the fair market value” for use of the public lands, subject to certain exceptions. The Energy Act of 2020, 43 U.S.C. 3003, introduced a new exception to FLPMA's fair market value requirement, authorizing the Secretary to “reduce acreage rental rates and capacity fees, or both, for existing and new wind and solar authorizations” if the agency makes certain findings. These findings can include that the existing rates “exceed fair market value,” “impose economic hardships” or “limit commercial interest in a competitive lease sale or right-of-way grant,” or “that a reduced rental rate or capacity fee is necessary to promote the greatest use of wind and solar energy resources.” 43 U.S.C. 3003(b)(1)(A)-(C) and 3003(b)(2). As reflected in this final rule, the BLM determined that the changes to the acreage rents and capacity fees for solar and wind energy right-of-way authorizations are needed to “promote the greatest use of wind and solar energy resources” and maximize “commercial interest” in lease sales and right-of-way grants. Reducing the acreage rent and capacity fee in this final rule will encourage solar and wind energy development with a goal of increasing the share of clean energy that is part of the United States' domestic power infrastructure as authorized by the Energy Act of 2020 and directed by Executive Orders 14008 and 14057. This will be done by decreasing the costs for developers to construct and operate solar and wind energy development, allowing them to increase investments in new facilities and thus promote additional development. These changes will result in the most additional deployment of solar and wind energy development (see Regulatory Impact Analysis 3.1.D). The BLM's determination is supported by a regulatory impact analysis of economic impacts, public comments received on the proposed rule, and the BLM's experience with solar and wind energy development on public lands. Reductions in costs will also benefit smaller-scale projects or projects that are on the margins of being economically profitable. Additionally, the BLM expects that the rule will not only increase interest among renewable energy developers to use BLM-administered public lands, but it will decrease the cost for developers such that they may be able to invest in additional wind and solar projects on Tribal, State, or private lands. Further, the decrease in cost to developers is expected to translate, over time, to a reduction in the average cost per MW of solar and wind energy, which will make solar- and wind-generated energy more competitive with other energy sources and will stabilize or even reduce the cost of energy to consumers, even as the cost of other energy sources may experience increased volatility. The BLM also determined that the authority provided under the Energy Act of 2020, 43 U.S.C. 3003, supports two other reductions to the capacity fees under two potentially qualifying circumstances: (1) a Domestic Content reduction when a grant holder or lease holder demonstrates the use of American-made iron, steel, construction materials, or manufactured products in the construction of the project consistent with the requirements set forth in this final rule; and (2) a reduction for Project Labor Agreements (PLAs), i.e., when the holder uses PLAs to hire labor for the development and construction of a solar or wind development. The additional, voluntary reductions offered in this final rule advance the Energy Act of 2020 goal of promoting the greatest use of solar and wind energy resources. First, a Domestic Content reduction will provide an incentive to use components made or manufactured in the United States in the construction of the solar or wind energy development project by offsetting those costs, which, if broadly adopted, could increase demand for domestically produced renewable energy parts and materials and, over the long term, lead to decreased costs for parts and materials, decreased reliance on potentially volatile foreign-sourced parts and materials, and ultimately increased economic certainty for and promotion of wind and solar energy resources on public lands. Second, the PLA reduction will incentivize good labor practices and in turn lead to responsible and productive construction, minimize the potential duration, and improve construction standards, thereby promoting the greatest use of wind and solar resources. These reductions will also incentivize project proponents to advance other Congressional and Administration goals that strengthen the use of American products and manufacturing and the associated labor markets. Therefore, reductions in the final rule that rely upon authority from the Energy Act of 2020 include an 80 percent reduction to the MWh rate when setting the capacity fee and the two additional reductions to the capacity fee for which right-of-way holders may qualify: a 20 percent Domestic Content reduction and a 20 percent PLA reduction. The MWh rate reduction applies to projects when they are permitted (or grants or rights-of-way are re-issued under 2806.51(c)) and continues for the life of the grant. The MWh rate reduction will be 80 percent through 2035, 60 percent for new authorizations in 2036, 40 percent for new authorizations in 2037, and 20 percent for new authorizations in 2038 and beyond. Additional information on the MWh rate is found under the discussions of §§ 2801.5 and 2806.52(b) of this preamble, as well as more broadly under part 2806 of this preamble. This final rule also codifies a new rate-setting methodology for solar and wind energy development projects. Under this rule, the BLM will collect from right-of-way holders the greater of either an acreage rent or a capacity fee. The BLM will assess acreage rent by applying the rate schedule, based on a survey of values for pastureland from the National Agricultural Statistics Service (NASS) Cash Rents Survey, to the number of acres that the right-of-way authorizes for use. Capacity fees reflect the value of generating electricity from solar and wind energy resources, which are quantified by the number of megawatt hours (MWh) of electricity produced from public lands. In this rule, the BLM has changed the definition of capacity to move away from the maximum capacity that a solar facility could produce and towards ensuring that the capacity fee reflects the actual capacity for solar or wind energy generation of a site covered by a given right-of-way grant or lease, taking into consideration environmental or other factors that may impact generation capacity of the site, including weather, servicing, and Acts of God. As provided in the final rule, the BLM will determine the capacity fee by considering the wholesale prices for major trading hubs serving 11 western States, and documentation concerning the price received by the right-of-way holder under a Power Purchase Agreement. The final rule provides that, when issuing a grant or lease for solar or wind energy development, or a renewal of such grant or lease, the BLM will set the per-acre rate and the MWh rate (including applicable reductions). The acreage rent and capacity fee will be adjusted annually, however, using an annual adjustment factor set at the beginning of the grant or lease term. Upon renewal of a right-of-way, the per-acre rate and the MWh rate and reductions would be updated based on the then-current rates, as well as any applicable reductions for which the right-of-way holder qualifies at that time. Existing right-of-way holders may elect to continue using their current rate setting methodology, which may be updated periodically for changes in the market, or change to the new rate setting methodology in this final rule. Otherwise, the new rate setting methodology would only apply to new or renewed rights-of-way. If an existing right-of-way holder elects to change to the new rate setting methodology, that methodology will apply until the end of the right-of-way term. This final rule bases the capacity fee for solar and wind energy generation facilities on actual energy generation at each facility rather than on nameplate capacity. The BLM believes this change more accurately reflects the actual capacity for energy production of an individual project based on a developer's selection of technology, project design, and the solar or wind resource available at a particular site. This change to the capacity fee indexes the required payment to the projects' energy generation, being greater when the project generates more energy and less when it generates less. This rule improves payment predictability for grant and leaseholders by revising the key data used for determining the acreage rent and the capacity fee—the state-wide pastureland rent values and the wholesale price of electricity—at the time the right-of-way is issued. In doing so, the per-acre and MWh rates are set for the term of the right-of-way and only adjusted by the annual adjustment factor and, in the case of the capacity fee, by the holder's actual annual energy production. See preamble §§ 2806.50 and 2805.52 for a more detailed discussion of the BLM's proposed methodology for determining the acreage rent and capacity fee. Solar and Wind Energy Applications Inside Designated Leasing Areas In this final rule, the BLM clarifies that it will review and process applications, including on a non- competitive basis, for proposed solar and energy generation rights-of-way inside DLAs, which are defined at 43 CFR 2801.5(b). The BLM retains discretion to conduct competitive processes, either inside or outside of DLAs, where the authorized officer decides to do so. In the proposed rule, the BLM used the terms “competitive offer” and “competitive process” interchangeably. To provide clarity and minimize confusion, the final rule uses only the term “competitive process” to describe the method by with the BLM will offer parcels in a competitive bidding process. To learn more about BLM's DLAs, see the 2012 Western Solar Plan ( https://blmsolar.anl.gov/documents/solar-peis/ ), which identified approximately 285,000 acres of agency preferred development locations ( i.e., DLAs) with high potential for solar energy production and low conflicts with other resources and uses. Subsequently, the BLM designated approximately 388,000 acres of preferred development locations for solar energy in California through the 2016 Desert Renewable Energy Conservation Plan ( https://blmsolar.anl.gov/documents/drecp/ ) and over 192,000 acres of preferred development locations for solar, wind, and geothermal energy in Arizona through the 2017 Restoration Design Energy Project. Currently, the BLM is in the process of updating its 2012 Western Solar Plan to, among other things, make programmatic planning decisions for solar development on BLM-administered lands in 11 western states, including Arizona, California (exclusive of the area covered by the Desert Renewable Energy Conservation Plan), Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Oregon, Washington, and Wyoming (See https://eplanning.blm.gov/eplanning-ui/project/2022371/510 ). Under this final rule, if no competitive interest exists for a particular parcel, the BLM may issue leases without a competitive process. This change to the rule provides the BLM with increased flexibility and discretion to issue grants and leases through either competitive or non-competitive processes across all public lands inside and outside of DLAs, which is expected to maximize interest in renewable energy leasing and accelerate the deployment of solar and wind energy on the public lands. See subpart 2809 for a discussion of the competitive process for solar and wind energy. Need for the Rule FLPMA provides the BLM with comprehensive authority for the administration and protection of the public lands and their resources and directs that the public lands be managed “on the basis of multiple use and sustained yield” unless otherwise provided by law (43 U.S.C. 1732(a)). Further, FLPMA authorizes the BLM to issue rights-of-way on the public lands for electric generation systems, including solar and wind energy generation systems, and mandates that the United States receive fair market value for the use of the public lands and their resources unless otherwise provided for by statute (43 U.S.C. 1764(g)). On December 27, 2020, the Energy Act of 2020 was enacted, establishing a minimum goal of “authoriz[ing] production of not less than 25 gigawatts of electricity from wind, solar, and geothermal energy projects by not later than 2025” on Federal lands. 43 U.S.C. 3004. Current information regarding the BLM's approved energy development projects and number of gigawatts is available on its website. 2 The Energy Act of 2020 also provides the BLM with new authority to reduce rates below fair market value based on specific findings, including “that a reduced rental rate or capacity fee is necessary to promote the greatest use of wind and solar energy resources” 43 U.S.C. 3003(b)(2). The BLM has determined that reduced rates and fees are necessary to promote the greatest use of wind and solar energy resources, and this rule seeks to implement such reductions consistent with the direction in the Energy Act of 2020. 2 https://www.blm.gov/programs/energy-and-minerals/renewable-energy/active-renewable-projects. On January 27, 2021, President Biden issued Executive Order (E.O.) 14008, “Tackling the Climate Crisis at Home and Abroad.” Section 207 of E.O. 14008, titled “Renewable Energy on Public Lands and in Offshore Waters,” instructs DOI “to increase renewable energy production on (public) lands.” The changes in this rulemaking will provide clearer direction for the BLM in processing proposed renewable energy right-of-way applications on public lands while also supporting the goals of the Energy Act of 2020 and E.O. 14008. Statutory Authority Section 310 of FLPMA (43 U.S.C. 1740) authorizes the Secretary to promulgate regulations to carry out the purposes of FLPMA and other laws applicable to public lands. Section 302 of FLPMA (43 U.S.C. 1732) also provides comprehensive authority for the administration and protection of the public lands and their resources and directs that the public lands be managed “under principles of multiple use and sustained yield,” unless otherwise provided by law (43 U.S.C. 1732(a)). Sections 501, 504, and 505 of FLPMA authorize the Secretary to grant rights-of-way on public lands; to issue regulations governing such rights-of-way and charge rent for such rights-of-way; and to impose terms and conditions on rights-of-way grants, respectively (43 U.S.C. 1761, 1764, and 1765). Sections 304 and 504 of FLPMA (43 U.S.C. 1734(b) and 1764(g)) also authorize the BLM to collect funds from right-of-way applicants or holders to reimburse the agency for its costs incurred while working on a proposed or authorized right-of-way. As defined by FLPMA, the term “right-of-way” includes an easement, lease, permit, or license to occupy, use, or traverse public lands (43 U.S.C. 1702(f)). See Title V of FLPMA (43 U.S.C. 1761-1772). The Energy Act of 2020 authorizes the Secretary to reduce acreage rental rates and capacity fees if the Secretary makes certain findings, which can include that the existing rates “impose economic hardships” or “limit commercial interest in a competitive lease sale or right-of-way grant,” or “that a reduced rental rate or capacity fee is necessary to promote the greatest use of wind and solar energy resources” (43 U.S.C. 3003). III. Discussion of Public Comments on the Proposed Rule This section of the preamble briefly summarizes broad and general comments on the proposed rule and the BLM's responses. Comment responses within this section of the preamble have been grouped and summarized by category that would apply to one or more sections of this final rule. You will find additional comments that are more specific to sections of this final rule, and their responses, in Section IV (Section-by-Section Discussion) of this preamble. Solar and Wind Energy Rents and Fees—Part 2806 Summary of Comments: While several commenters supported the proposal for reduced rents and fees, other commenters questioned the need for reduced rents and fees and requested more research and discussion to determine if current costs exceed fair market value, impose economic hardships, limit commercial interest, are not competitively priced, or disincentivize the greatest use of wind and solar energy resources. Response: Under the Energy Act of 2020 (43 U.S.C. 3003(b)), Congress recognized the need to promote wind and solar energy projects on Federal lands, giving the Secretary the authority to reduce acreage rental rates, capacity fees, or both if she determines that “the existing rates (A) exceed fair market value; (B) impose economic hardships; (C) limit commercial interest in a competitive lease sale or right-of-way grant; or (D) are not competitively priced compared to other available land;” or that a reduction is “necessary to promote the greatest use of wind and solar energy resources.” 43 U.S.C. 3003(b)(1)-(2). The BLM considered whether capacity fee reductions are necessary to promote the greatest use of wind and solar energy resources and has determined reductions are necessary. This final rule describes how the capacity fee reductions will increase interest in and incentivize wind and solar energy development on public lands and thereby accelerate deployment of renewable energy resources in the United States. This final rule also includes changes to the BLM's rate-setting methodology that improve future rate predictability (see Regulatory Impact Analysis) and reduce potential for economic hardships. Summary of Comments: Commenters suggested that the BLM should not speculate on the economic impacts of the proposed rule or requested additional analysis and use of additional sources to back up statements made. Response: The BLM prepared an economic analysis for the proposed rule and then completed a Regulatory Impact Analysis for this final rule that provides a transparent analysis of the anticipated economic consequences for this rulemaking. This analysis informs the agency decision, including whether this rulemaking would accomplish its goals. For further information on the economic impacts of this rule, please see the Regulatory Impact Analysis that is available with a search at regulations.gov of this Regulatory Identifying Number “1004-AE78.” Summary of Comments: Commenters suggested rents and fees should be increased rather than decreased due to the environmental impacts of solar and wind energy development, as well as their incompatibility with other uses. Some further suggested that reducing fees on projects that are on the margins of being profitable creates the risk of projects failing and not being properly removed and rehabilitated. Response: The BLM disagrees with the commenters' suggestion that rents and fees should be increased rather than decreased. As explained in more detail in the previous section on Solar and Wind Energy Rents and Fees, the Energy Act of 2020 (43 U.S.C. 3003) provides the BLM with authority to reduce acreage rents and capacity fees, including for the purpose of promoting the greatest use of wind and solar resources. The BLM has determined that reductions in acreage rents and capacity fees will promote wind and solar resources and is within the BLM's discretion under the Energy Act of 2020. Further, the BLM has carefully considered its final rule and concluded that decreasing rents and fees is necessary to accomplish the goals set forth by Congress in the Energy Act of 2020, by the President in E.O. 14008, and by the Secretary in Secretary's Order 3399. Congress set a national goal for renewable energy production on Federal land, directing the Secretary to seek to issue permits authorizing production of not less than 25 gigawatts of electricity from wind, solar, and geothermal energy projects on Federal land by not later than 2025. 43 U.S.C. 3004. Congress further provided the Secretary with discretion to reduce the acreage rental rates and capacity fees, including where necessary to promote the greatest use of solar and wind energy resources on BLM-administered public lands, which would advance the goals set by the Energy Act of 2020, as well as those in E.O. 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” 86 FR 7037; E.O. 14008, “Tackling the Climate Crisis at Home and Abroad,” 86 FR 7619; and Secretary's Order 3399, “Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process.” The use of public lands for energy generation systems is specifically contemplated in the FLPMA and the Energy Act of 2020. The BLM considers the potential environmental effects of solar or wind energy development when conducting land use planning and evaluating project applications, not when identifying appropriate rental rates and fees for development projects. The BLM considers and analyzes environmental impacts of proposed energy development, including appropriate mitigation measures, before authorizing any such project. Additionally, the BLM does not believe there is any correlation between reductions in capacity fees and the ability of project proponents to properly remove and remediate facilities. Any applicable fee reductions contemplated in this rule would not alter a project proponent's obligations to provide for adequate bonding associated with construction and remediation associated with terminated or abandoned facilities, as required by 43 CFR 2805.12(b), 2805.20, and 2809.18(e). Summary of Comments: Commenters noted that reducing rents and fees for renewable energy projects on public lands would economically impact the developers of similar projects on private or Tribal lands and could impact property values. Response: This final rule changes the BLM's administrative processes and rates for solar and wind energy development projects on public lands. While the final rule is intended to encourage solar and wind energy development on the public lands, it would be speculative for the BLM to attempt to analyze whether and to what extent there may be secondary impacts to solar and wind energy development on private or Tribal property. This is particularly the case due to the wide variety of factors that influence developers' decisions about whether and where to pursue solar and wind energy projects, including, but not limited to, state, Tribal, and local permitting requirements, the ability to enter into power purchase or offtake agreements, the availability of existing or proposed transmission, and project-specific financing considerations. Notwithstanding these different factors, the final rule will generally decrease costs for developers on public lands, which may permit them to pursue additional opportunities for development on Tribal, state, and private lands and thereby further promote the greatest use of solar and wind energy. Summary of Comments: Some comments asked about rate changes that would occur after 2036. Commenters raised four specific issues that the 2036 rate change causes. First, some commenters asserted that rates after 2036 would run higher than fair market value and are therefore a violation of FLPMA's requirement that the BLM charge no more than fair market value. Second, some commenters asserted that the Secretary's authority to reduce rates under the Energy Act extends beyond 2035, and America's need for renewable energy, set by Congressional and Presidential goals, would require incentives beyond 2036. Third, some commenters asserted that the 2036 rate increase would discourage right-of-way renewals after that year. Last, some commenters asserted that the BLM has not adequately explained why it is choosing to phase out the final rule's rate reductions in 2036. Response: This final rule helps lead the way to accomplishing the national goal of a carbon pollution-free electricity sector by 2035, as highlighted in Executive Orders 14008 and 14057. Based on its review of comments, the BLM has modified the sunset provision in the final rule. Instead of immediately transitioning the capacity fee reduction from 80 percent to 20 percent, the final rule will lower the reduction by 20 percentage points per year over a period of three years starting in 2036. Instituting a phased sunset period to the 80 percent reduction in the capacity fee is appropriate as the renewable energy industry may no longer need this reduction to achieve the greatest use of wind and solar on public lands, and progress toward our national goal of a carbon-pollution free electricity sector may indicate that a reduction is no longer warranted. After the sunset period ends, this final rule will continue to provide a 20 percent reduction for solar and wind energy development projects. The BLM will evaluate progress towards reaching national goals and the benefit of the reduction before 2036 and could reinitiate rulemaking to adjust incentives, including extending them beyond 2036. The BLM believes that knowing beforehand what the rates are for a facility and the increased predictability of those rates in the future will improve the economic certainty for project development and support a developer's or operator's decisions in power purchasing, financing, and other agreements that are necessary for a successful renewable energy project. This would be the same for existing authorization holders who choose to change to this new rate setting methodology, as well as for authorization renewals. Lastly, the BLM believes that the economics for renewable energy will continue to improve over time, and that the magnitude of such a reduction in 2036 is uncertain. Lands Available for Solar and Wind Energy Applications Summary of Comments: Some commenters recommended that the BLM further restrict renewable energy development outside of solar energy zones and prohibit such development close to sensitive habitats or recreation areas. Commenters stated that competitive offers should not be allowed outside of designated zones. Response: Through the National Environmental Policy Act (NEPA) process, the BLM considers the environmental impacts of proposed uses on the public lands, including solar and wind energy development, to inform the BLM decisions to deny, approve, or approve with modification the proposed use. The BLM will include terms and conditions as appropriate to address resource and environmental impacts of the project. The BLM also performs broader analysis to inform whether certain lands may be made available for that use through the land use planning process required by FLPMA, 43 U.S.C. 1712. As described further below, the BLM's ongoing planning process to update to its 2012 Western Solar Plan 3 will amend BLM land use plans in 11 Western States (Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming), or portions thereof, to identify new priority areas for solar energy development, variance areas, and public lands that are excluded from solar energy development, and to update requirements that holders must comply with, including for sensitive resources and uses that the BLM has previously authorized. This rulemaking does not make land use planning decisions—including determining whether areas should be excluded from solar and wind energy development because they would impact sensitive habitats or recreation areas—which are completed under a separate BLM process. This rulemaking does not change the competitive process outside of designated zones, but rather aligns the competitive process for solar and wind applications across all areas within and outside of designated areas. The BLM believes that where competitive interest exists—for example, in the form of multiple overlapping applications or a high level of interest in a general area—competitive processes should be used, regardless of whether the lands are in a DLA, to advance the projects that are most likely to proceed to development. 3 https://www.federalregister.gov/documents/2022/12/08/2022-26659/notice-of-intent-to-prepare-a-programmatic-environmental-impact-statement-to-evaluate-utility-scale. Summary of Comments: Commenters noted that the BLM references solar energy zones from the 2012 Western Solar Plan in the proposed rule without discussing that the 2012 Plan is now under revision and will include an additional 5 states (Idaho, Montana, Oregon, Washington, and Wyoming). Commenters requested that the BLM coordinate the rulemaking process with the land use planning effort accompanying the Western Solar Programmatic Environmental Impact Statement (Western Solar PEIS), recognizing the various alternatives being considered and the impacts that each (Western Solar PEIS vs. proposed rule) have on the other. Commenters believed many of the changes in this rule that refer to decisions or processes that occur prior to project approval are currently being considered as part of the Western Solar PEIS plan amendment process and may be better suited for the PEIS. Response: This rulemaking effort and the Western Solar PEIS are two separate actions that complement one another, but they have different goals, are subject to different authorities, and will address different aspects of the ROW authorization process. This final rule sets out how the BLM will process applications and calculate rents, in order to implement new authorities and meet National goals established in the Energy Act and directed by Executive Order 14008 for both wind and solar energy development. This rulemaking does not make land use planning decisions. In contrast, the plan amendment process associated with the Western Solar PEIS focuses exclusively on solar development on public lands through a separate process governed by Section 202 of FLPMA (43 U.S.C. 1712) and the BLM resource management planning regulations at 43 CFR 1610, et seq. to update the BLM's Western Solar Plan. That programmatic land use planning process will consider updating the BLM's Western Solar Plan, with a primary focus on identifying the best locations for utility-scale solar energy development, as well as restrictions and mitigation applicable to such development, on BLM-managed public lands in 11 Western States. The BLM's land use planning decisions, including any amendments to plans, will comply with applicable laws and regulations. Comment Summary: The BLM understands from comments it has received that some believe that the proposed rule has insufficient analysis under E.O. 12866. These comments suggest that the BLM must coordinate more closely with local governments to collect economic data. Response: The BLM appreciates the interest and engagement from partners across the multiple landscapes in the United States, however the BLM disagrees with comments that additional coordination must be performed with local governments for this rulemaking. This rule governs the BLM's administration of applications and authorizations for solar and wind energy development projects on public lands. While the rule does have some financial implications with adjustments to the BLM's rates, these are transfer payments as explained more fully in the Regulatory Impact Analysis accompanying this final rule and would not materially affect the resources available to the American economy. The BLM will continue to engage with the public it serves, and its many partners through BLM's public processes, including project-specific analysis and programmatic and land use planning analysis through NEPA. No change made based on these comments. Need for the Rule Summary of Comments: Commenters requested the BLM include a more meaningful explanation of the necessity of this rulemaking, including technical data that supports a need for increased preferences and favorable treatment for lease terms. Commenters stated that solar development is not in line with FLPMA and does not allow for multiple use on public lands. Response: The BLM received new authority and guidance from Congress (Energy Act of 2020) and direction from the President (Executive Order 14008, among others) to promote renewable energy generation on public lands. This rule implements the new authority and direction for management of the public lands. The BLM disagrees with the comments suggesting that solar energy development is inconsistent with FLPMA's multiple use mandate. In managing the public lands, the BLM is not required to make every parcel of land available for all purposes. Consistent with FLPMA's multiple use mandate, the BLM has discretion through land use planning to identify areas that are available for, or excluded from, solar or wind energy development and to evaluate each proposed solar or wind energy development through a site-specific environmental analysis, including the need for environmental mitigation, as part of the decision-making process prior to issuing a grant or lease. Summary of Comments: Other commenters stated that they believe the BLM must improve its approach to facilitating renewable energy development to meet congressional goals. Other commenters expressed a belief that the free market would provide better solutions to greenhouse gas emissions and the climate crisis without authorizing projects on public land or providing additional incentives to site projects on public land. Response: The BLM does not agree that the free market alone would provide better solutions to greenhouse gas emissions and the climate crisis. Additionally, the approach suggested by commenters would be inconsistent with direction from Congress and the President to promote renewable energy generation on public lands. Particularly, the Energy Act of 2020, which is aimed at facilitating and promoting further development of wind and solar energy on Federal lands, specifically directs the BLM to “issue permits that, in total, authorize production of not less than 25 gigawatts of electricity from wind, solar, and geothermal energy projects by not later than 2025, through management of public lands and administration of Federal laws, ” 43 U.S.C. 3004(b) (emphasis added). Additionally, as described above, on January 27, 2021, President Biden issued E.O. 14008, “Tackling the Climate Crisis at Home and Abroad.” Section 207 of E.O. 14008, titled “Renewable Energy on Public Lands and in Offshore Waters,” instructs DOI “to increase renewable energy production on [public] lands.” This final rule updates and improves the BLM's approach to facilitating renewable energy development on public lands based on lessons learned from implementation of the 2016 rule as well as changes in National renewable energy goals and the maturation of energy market over the past eight years. This update to the BLM's rules improves the BLM's orderly administration of public lands and helps reach the goals set by Congress and at the direction of the President. The BLM expects to continue working with the public to provide better solutions to resource concerns, such as greenhouse gas emissions and climate change, to best manage the public lands and its resources. Addressing such resource solutions are not part of this rulemaking. Summary of Comments: Commenters stated that the current market conditions, state and Federal mandates and regulations, and demand for green energy makes reducing fees unnecessary and that the BLM has failed to explain why the reductions are necessary. Response: The changes in this rule clarify how the BLM will process renewable energy right-of-way applications on public lands while supporting the goals of the Energy Act of 2020 and direction from the President (E.O. 14008 and 14057). Through the BLM's experience administering solar and wind energy development rights-of-way, the BLM understands the importance of stable and predictable rates for the term of an authorization. The BLM expects that the rule will help to meet national renewable goals more expeditiously. The BLM expects that the rule will not only increase interest among renewable energy developers to use BLM-administered public lands, but will decrease the cost for developers such that they may be able to invest in additional wind and solar projects on Tribal, State, or private lands. The BLM explains more fully the need for the rule and its reductions in the section-by-section discussion portion of this rule under subpart 2806. Summary of Comments: A commenter stated that section 3003(b) of the Energy Act does not explicitly authorize the Secretary of the Interior to reduce right-of-way rents and fees below fair market value and that Congress did not explicitly repeal, amend, or supersede FLPMA's unequivocal fair market value requirement. They questioned if the Energy Act supersedes FLPMA's fair market value requirement for rights-of-way. Response: The BLM disagrees with the comments suggesting that the Energy Act of 2020 does not authorize the Secretary to reduce right-of-way rents and fees below fair market value. First, a plain reading of the Energy Act authorizes the Secretary to reduce rental rates and capacity fees below fair market value. Specifically, it authorizes the Secretary to reduce “acreage rental rates, capacity fees, and other recurring annual fees in total” for solar and wind energy generation projects on BLM-managed public lands under a broad set of circumstances. Additionally, Congress presumably understood the fair market value requirement in FLPMA, and the discretion in the Energy Act to reduce rental rates and capacity fees is as a modification of that existing requirement. The reductions authorized in Section 3003 of the Energy Act would be meaningless if Congress intended the reductions to be limited by FLPMA's general requirement to collect fair market value for rights-of-way. Statutory Authority Summary of Comments: One commenter expressed concern that this proposed rule will set precedent for a similar issue DOI is trying to address under the Fluid Mineral Leases and Leasing process. Response: This final rule modifies procedures that are specific to identifying rental rates and capacity fees for wind and solar authorizations; it does not apply to or set a precedent for other BLM authorizations or processes, including those under the Mineral Leasing Act (MLA). Summary of Comments: Another commenter requested information about how this final rule interacts with other BLM rules and administration directives, including the Conservation and Landscape Health Rule, Secretary's Order 3362, Improving Habitat Quality in Western Big-Game Winter Range and Migration Corridors (Feb. 9, 2018), and BLM Instruction Memorandum 2023-005 Change 1, Habitat Connectivity on Public Lands (Nov. 18, 2022). Response: This final rule updates the processes used in the BLM's orderly administration of the public lands. Any decisions made in connection with right-of-way grants following the procedures laid out in this rule will also be subject to all other applicable legal requirements and administrative directives, including the Conservation and Landscape Health Rule, Secretary's Order 3362, and BLM policies and guidance. National Environmental Policy Act (NEPA) Comment Summary: Commenters requested the BLM prepare a NEPA analysis to evaluate the environmental effects of the final rule, including because extraordinary circumstances (43 CFR 46.215) apply and therefore reliance on a Categorical Exclusion is not appropriate. Response: The BLM disagrees with comments that an environmental assessment or environmental impact statement analysis under NEPA is required, or that extraordinary circumstances apply to this rulemaking. The BLM has determined that the categorical exclusion at 43 CFR 46.210(i), which excludes, “regulations . . . that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA process, either collectively or case-by-case,” applies to this final rule. The BLM has reviewed the extraordinary circumstances listed in 43 CFR 46.215 and determined that none applies. This categorical exclusion documentation is provided on the BLM's ePlanning web page at the following URL: https://eplanning.blm.gov/eplanning-ui/project/2016102/510. As such, the final rule fits within the categorical exclusion for rules, regulations, or policies to establish bureau-wide administrative procedures, program processes, or instructions. This final rule does not authorize any project or other on-the-ground activity and therefore would have no significant individual or cumulative effect on the quality of the human environment. At such time that specific solar or wind energy development projects are proposed, the BLM will consider those proposed actions in compliance with NEPA. Comment Summary: Some commenters suggested that there should not be a requirement of a published environmental assessment (EA) or environmental impact statement (EIS) before foreclosing the opportunity to hold a competitive offer. Some commenters believed the BLM should require analysis of a competitive offer through an EIS to identify and disclose the impacts of such an action. Response: The BLM is not required to perform environmental analyses on whether to hold a competitive process; nonetheless, in § 2809.12(b) the BLM reserves the right to complete a NEPA analysis before holding a competitive process. The BLM does not typically complete a NEPA analysis for a competitive leasing process, but at least one NEPA analysis will be completed before authorizing solar or wind energy development. Determining that there may be competitive interest and utilizing a competitive process is administrative and procedural only, does not trigger the need to prepare an environmental analysis under NEPA or have any significant effect on the human environment, and is simply based on whether there is adequate interest from more than one applicant. The BLM would complete a land use planning and NEPA analysis were it to change allocations in a current land use plan to allocate areas of public lands to either allow or exclude solar or wind energy development—a process the BLM is currently undertaking regarding solar energy for 11 western states by updating the 2012 Western Solar Plan through a PEIS. For example, in the case of solar or wind energy development leasing, the BLM must first identify public lands as a designated leasing area for solar or wind energy development through a land use planning process with an associated NEPA analysis. If the BLM receives competitive interest in those lands, the BLM would hold a competitive process to determine the presumptive leaseholder. Alternatively, the BLM may determine that the NEPA analysis for a designated leasing area should be updated to reflect new or changing circumstances and in turn may offer such lands competitively to determine a preferred applicant. Upon determining the presumptive leaseholder or preferred applicant, the BLM would then complete a NEPA analysis before determining whether to authorize the wind or solar energy generation project proposed. For either the presumptive leaseholder or preferred applicant, even if the BLM does not complete a NEPA analysis to consider whether to hold a competitive process, the resulting project will be subject to multiple NEPA analyses before it is approved. Additional comments: Additional comments and their responses are found in Section IV (Section-by-Section Discussion) of this preamble. The BLM is a multiple-use agency, and solar and wind energy development is one of the many uses for which the BLM manages the public lands. While all comments that the BLM received are important, this final rule does not respond to those that are out of scope for the action the BLM is taking. Comments that are out of scope for this rulemaking include those regarding project-specific considerations, state laws and authorities, national energy policies and priorities that do not affect solar and wind energy or the public lands, engaging in specific partnerships, general statements of support or opposition to the rule which do not require a detailed response, and availability and distribution of financial resources, among others that are not specific to the BLM's administration of solar and wind energy development applications and rights-of-way and rate-setting. The BLM will continue to engage with the public and Tribal, Federal, State, and local government partners on the BLM's management of its public lands, as appropriate. Subsequent actions that the BLM may take will be subject to the policies, laws, and regulations in place at that time, including those for consultation, environmental review, and entering into agreements or partnerships with others. IV. Section-by-Section Discussion 43 CFR Part 2800 Rights-of-Way Authorized Under FLPMA Part 2800 of the CFR describes requirements for rights-of-way issued under Title V of FLPMA. This final rule revises the per acre rent and per MWh capacity fee schedules for solar and wind energy development rights-of-way. It updates the application process for public lands and focuses the BLM's competitive processes to places where there is competitive interest. This final rule also includes the principles for prioritizing solar and wind energy applications, establishing criteria for a “complete application,” and corrects or clarifies existing regulations. The BLM conducted extensive public and Tribal outreach on this rule both prior to its publication as a proposed rule and during the public comment period on the proposed rule. Prior to the publication of the proposed rule, the BLM notified Tribes in August 2021 of its upcoming rule and requested any comments and concerns that Tribes may have on such a rule. The BLM then held three public listening sessions in September 2021 on its potential use of the Energy Act of 2020 authority. The BLM also requested and received feedback from the public on preferred alternatives to use of the Energy Act of 2020 authority in its Manual 2806.60, “Rent,” which was later published in May 2022 after three public listening sessions and public review and comment on the draft Manual. The BLM published its proposed rule in June 2023, receiving nearly 900 comments after holding three virtual public meetings. The BLM also sent Tribes another notice about the rulemaking in July 2023, requesting Tribal input and whether there was any interest to consult on the rule. No Tribes responded with interest to consult on the BLM's rulemaking. Section 2801.5 What acronyms and terms are used in the regulations in this part? The existing § 2801.5 contains the acronyms and defines the terms used in this part of the regulations. The BLM proposed to remove, revise, and add acronyms and terms to this section. Section 2801.5 of this final rule has some revisions in response to comments that are discussed further in this section for each respective revision. Under this section, several commenters recommended the BLM engage relevant stakeholders and industry experts to ensure definitions accurately reflect industry practices and standards. The BLM regularly engages, and will continue to engage with, industry; Tribal, Federal, State and local authorities; and resource experts to supplement its knowledge about renewable energy and market advancements. The BLM sought public comment on the proposed rule and will seek public comment on any changes to its acronyms and terms in future rulemakings. The BLM received comments requesting the BLM consider the full life cycle of materials, energy inputs and technology types, and resource and land use footprints, and suggesting that labeling all wind and solar energy as renewable energy is misleading. The BLM agrees that it should analyze land use footprints and resource impacts of proposed projects on public lands. However, analyzing the full life cycle of materials, energy inputs, and technology types are addressed by other parts of the Federal government where such analysis is within their expertise. The BLM also believes that for purposes of this final rule, all solar and wind energy generation projects are renewable energy development projects insofar as they use a natural resource on public lands that is not depleted to produce power. One comment suggested that the BLM should include a definition for “current land use plan” to mean “a document developed through a formal planning process to guide the management of activities and uses of public lands that has been approved, amended, or recertified within the past ten years.” The BLM has separate rules governing its land use planning processes found at 43 CFR Chapter V, Subchapter A, that provides definitions related to the BLM's land use planning. Accordingly, the BLM did not make changes in response to that comment since they are out of scope for this rule under 43 CFR part 2800. Commenters suggested that the term “economic hardship” under 43 U.S.C. 3003 should be defined in this final rule and that the BLM should require proof of economic hardship for rent and fee reductions. The BLM does not define economic hardship in this rule as suggested. Each instance of hardship is unique to a holder and their circumstances and will be assessed on a case-by-case basis. The BLM does not intend to define hardship (economically, financially, or otherwise) so as not to unintentionally preclude reasonable requests to consider hardship. Commenters stated that the proposed rule uses unclear language and is inconsistent with underlying resource management plans, agency guidance, and regulatory frameworks, and requested the BLM use more specific language such as pastureland, rangeland, habitat, or other terminology to denote the uses of the landscape. The BLM disagrees with the commenters' suggestion that the proposed rule uses unclear language and that the rule should include other definitions in this final rule. The BLM's use of “pastureland rents” comes from the name of the survey data used as the basis in determining the acreage rent in this final rule: The NASS Survey of Pastureland Rents. This is a newer source of data from NASS that was not available in the original 2012 Western Solar Plan or when the BLM promulgated its 2016 rule for solar and wind energy and has not yet carried through to other guidance materials from the BLM. It is appropriate for the BLM to use this terminology in describing the data used and its source in the regulations. Future BLM guidance and actions would include this terminology as appropriate. Commenters requested the BLM settle on one standard term (“preferred renewable energy development areas”) for the preferred renewable energy project locations to avoid conflicts with other resources and uses. Commenters also suggested that the definitions for “variance areas” and “exclusion areas” should be added to the rule. The BLM understands the interest in defining such terms and has already done so in its land use planning efforts, such as the ongoing Solar Energy PEIS effort to update the 2012 Western Solar Plan. The BLM believes these terms are best identified and defined as part of the land use planning process and is not making any changes to this rule due to comments. Paragraph (a) of this final rule provides for the acronyms and paragraph (b) provides for the terms used in this part. The final rule would remove, revise, and add certain terms to the BLM's acronyms and definitions found in part 2800. This final rule adds the acronym “FLPMA” to paragraph (a) meaning the Federal Land Policy and Management Act of 1976, as amended (43 U.S.C. 1701 et seq. ). This acronym replaces the term “Act” from paragraph (b), providing clarity as to which act the BLM is referencing. The BLM received no substantive comments on replacing the term “Act” with “FLPMA,” and therefore this final rule makes no changes to the proposed rule. This final rule removes definitions of “Megawatt (MW) capacity fee,” “Net capacity factor,” “Megawatt hour (MWh) price,” “Rate of return,” and “Hours per year.” The BLM no longer charges a megawatt capacity fee based on solar and wind energy generation facility nameplate capacity; definitions related to the nameplate capacity fee are removed. The BLM did not make changes to the definitions in the final rule. Some commenters noted inconsistencies related to the terms “Rate of Return” and “Hours per year.” Commenters pointed out that the proposed rule stated that these terms would be removed from § 2801.5(b), noting the paragraph numbering for the Federal Register instructions were confusing whether the terms were removed or not. The BLM agrees with commenters and has revised the Federal Register instructions, removing the proposed instruction number vi, “removing paragraphs (1) and (2) in the term “Megawatt rate” and redesignating paragraphs (3) and (4) as paragraphs (1) and (2). There are no paragraphs for the revised term, and removing the instructions is consistent with the proposed definition. The BLM did not make any other changes to this definition in the final rule. This final rule adds the term “Capacity fee” to mean the fee based on the amount of electricity produced from solar or wind energy resources on the public lands. This is consistent with the BLM's change implementing a capacity fee that is based on electricity production. There were no substantive comments on the term, and the BLM did not make changes to this definition in the final rule. The BLM includes in this final rule a new term “Domestic Content reduction” to define the circumstances in which a holder meets the domestic content criteria and thus qualifies for a fee reduction. This final rule includes changes to the term for “domestic content” to mean an item or product that qualifies for the Buy America preference as set forth in Section 70914 of the Build America, Buy American (BABA) Act, Public Law 117-58, 135 Stat. 429, §§ 70901-70927 (Nov. 15, 2021), and implementing guidance at 2 CFR part 184. The final rule modifies the definition for “domestic content” from the definition of “domestic end product,” as that term is used in Section 52.225-1 of the Federal Acquisition Regulations (FAR) (48 CFR 52.225-1) in the proposed rule, to the criteria for “domestic content preference” provided in the BABA Act and 2 CFR part 184. As described below, the qualifying definition in this final rule offers clarity and consistency among Federal programs regarding what constitutes domestic content and therefore is appropriate to apply to determine when a holder may obtain a fee reduction as identified under § 2806.52(b). The BLM has determined that offering a Domestic Content reduction will further promote the greatest use of solar and wind resources because it will support the development of secure, reliable domestic supply chains while also reducing economic hardships for developers. As discussed in the preamble to the proposed rule, uncertainty in global supply chain dynamics, as seen in recent years, can delay deployment of solar and wind energy development projects on public lands (88 FR 39726, 39740-39742). By offsetting some of the costs of domestically sourced parts and materials, the Domestic Content reduction will insulate developers from global supply chain shocks of all kinds by reducing the economic dependence of developers on global supply chains and will also support the efforts of domestic suppliers. In this way, the proposed Domestic Content reduction supports the transition to more reliable domestic supply chains that will, in turn, increase interest in developing solar and wind energy projects throughout the country, including on public lands (43 U.S.C. 3003(b)(1)(C)), and thereby would promote the development of solar and wind energy resources on public lands (43 U.S.C. 3003(b)(2)). Similar to the BLM's use in the proposed rule of a definition for Buy American based on section 52.225-1(b) of the FAR, this final rule's use of the term “domestic content,” following the BABA Act and 2 CFR part 184, identifies the components of projects through categories—iron or steel products, manufactured products, or construction material—that must be produced or manufactured in the United States in order to qualify for the Domestic Content reduction. The BABA Act applies to Federal financial assistance funds for “infrastructure projects,” which require the use of material produced in the United States. The Office of Management and Budget (OMB) published its final guidance implementing the BABA Act on August 23, 2023, under 2 CFR part 184. Generally, under 2 CFR 184.4(e), a “domestic content” preference would apply to three separate product categories: (i) iron or steel products; (ii) manufactured products; and (iii) construction materials. The OMB's guidance defines each of these categories and makes clear how a proponent satisfies the categorical requirements to demonstrate that the components of an infrastructure project meet the domestic content standards. This final rule uses the term “domestic content” as a catch-all term to refer to items for which the holder might satisfy the Domestic Content reduction based on the definitions established 2 CFR part 184. Some commenters suggested that the proposed Buy American definition should be revised to reflect eligibility for the reduction to mimic the guidance published by the Treasury Department and Internal Revenue Service for the domestic content bonus credit from section 13701 of the Inflation Reduction Act (IRA), 117 Public Law 169, 136 Stat. 1818 (Aug. 16, 2022). Other commenters requested the BLM utilize a domestic content definition that incentivizes the use of domestically manufactured core solar components, as laid out in Section 13502 of the Inflation Reduction Act. Commenters also urged the BLM to refine its approach and apply more robust origin standards to its domestic content proposal. The BLM has considered the various comments suggesting different definitions for what constitutes American-made products for the purposes of this reduction. In response to this public input, the BLM has changed from the FAR definition to the BABA Act (and implementing guidance at 2 CFR part 184) definition for the domestic content preference. The BLM is aware that the Treasury Department and Internal Revenue Service have issued guidance about the domestic content bonus under the Inflation Reduction Act for clean energy projects and facilities that meet American manufacturing and sourcing requirements. However, that guidance describes an intent to propose regulations that have not yet been finalized. This final rule's definition for domestic content aligns with definitions in other Federal programs with oversight over domestic products and content. This approach will promote consistency among these Federal programs, reducing the potential for unintended consequences resulting from conflicting definitions. As noted above, the BABA Act definition focuses on construction materials and components for infrastructure projects and is closely aligned with the type of projects covered in this final rule. The final rule revises the term “grant” to reflect that solar or wind energy leases are not covered under the definition. The change provides clarity for where the BLM will issue a solar or wind energy grant and where a solar or wind energy lease will be issued. Commenters suggested the term “lease” is unnecessary and to use “grants” instead, as the difference between a lease and a grant under the proposed rule is the location of a right-of-way either inside or outside a DLA. As identified in the BLM's 2012 Western Solar Plan, leases will be issued in areas designated for leasing under the relevant land use plan. The BLM disagrees with these comments and retains the distinction between solar and wind energy grants and leases in this final rule based on location of their issuance. The BLM did not make any change to this definition in the final rule. This final rule adds the term “Capacity fee” to mean the fee based on the amount of electricity produced from solar or wind energy resources on the public lands. This is consistent with the BLM's change implementing a capacity fee that is based on electricity production. There were no substantive comments on the term, and the BLM did not make changes to this definition in the final rule. The final rule revises the definition of the term “Megawatt hour (MWh) rate” to mean the five-calendar-year average of the annual weighted average wholesale prices per MWh for major trading hubs serving the 11 western states of the continental United States. This revision is consistent with the BLM's change to implement a capacity fee for solar and wind energy development projects. Some commenters were unclear whether the BLM had revised the definition of “Megawatt hour (MWh) rate” in the existing regulations, as § 2801.5(b) currently does not define that term. Commenters presumed that the BLM proposes to revise the existing definition of “Megawatt rate.” The BLM understands the confusion raised by these comments. The BLM revises the term “Megawatt rate” to “Megawatt hour (MWh) rate” in this final rule, consistent with the change to implement a capacity fee for solar and wind energy development projects. The BLM did not make any other changes to this definition in the final rule. This final rule revises the term “Reasonable costs” to be consistent with the rule change replacing the words “the Act” with the acronym “FLPMA.” There were no substantive comments on the term, and the BLM did not make changes to this definition in the final rule. “Renewable Energy Coordination Office (RECO)” is added in this final rule to mean one of the National, State, district, or field offices established by the Secretary under 43 U.S.C. 3002(a) that is responsible for implementing a program to improve Federal permitting coordination with respect to eligible projects on covered land and such other activities as the Secretary determines necessary. There were no substantive comments on the term, and the BLM did not make changes to this definition in the final rule. This final rule includes the new term “solar or wind energy development” to mean the use of public lands to generate electricity from solar or wind energy resources on public lands. This definition clarifies that the term “energy development” refers to uses of public lands that directly involve the generation of electricity on public lands. This definition clarifies which right-of-way grants and leases are subject to the conditions in Section 50265(b)(1) of the IRA, which apply to “a right-of-way for wind or solar energy development on Federal land.” Commenters suggested revising the definition of “solar or wind energy development” to include language from the BLM's recent Instruction Memorandum 2023-036, Inflation Reduction Act Conditions for Issuing Rights-of-Way for Solar or Wind Energy Development (April 23, 2023), according to which solar or wind energy development “does not include site-testing, communication sites, transmission lines, gen-tie lines, pipelines, roads, installation of batteries and other energy storage systems, or other uses that might indirectly support energy production or transmission.” The BLM does not agree that adding additional language to the definition is necessary for this final rule. This rule and the BLM's policies were written to complement each other in how the BLM administers applications and rights-of-way for such projects. The BLM did not make a change to this definition in the final rule. This final rule adds “Solar and wind energy lease” to mean any right-of-way issued under Title V of FLPMA within an area identified in a BLM land use plan as a DLA. Any right-of-way not issued within an area identified as a DLA would be a grant. The BLM received comments on this term, which are discussed with regard to the definition of “grant” in this final rule. The BLM did not make changes to this definition in the final rule. Section 2801.6 Scope Section 2801.6 describes the scope of 43 CFR part 2800's applicability. Paragraph (a)(1) of this final rule includes the additional language “or leases” describing that this part applies to both authorization types: grants and leases. A comment requested the following language be added to § 2801.6 Scope: “Applications for transportation or utility right-of-way crossing conservation system units, national recreation areas, or national conservation areas in Alaska are subject to the provisions of Title XI of the Alaska National Interest Lands Conservation Act and 43 CFR part 36.” This rule focuses on the BLM's generally applicable process for administering applications and rights-of-way for solar and wind energy development projects on the public lands. It does not modify or amend other applicable statutory or regulatory requirements, and the BLM would comply with all such requirements during the process set forth in this rule. The BLM made no changes to this section in the final rule based upon public comments. Section 2801.9 When do I need a grant or lease? Section 2801.9 explains when a grant or lease is required for systems or facilities located on public lands. Paragraph (d) of this final rule extends the term for solar or wind energy development authorizations up to 50 years, and authorizations for other uses that support solar or wind energy development, to up to 50 years, and make other technical changes. Paragraph (d)(3) provides that solar or wind energy development facilities authorized with a grant or lease may be issued for up to 50 years (plus initial partial year of issuance). Paragraph (d)(4) provides that energy storage facilities that are authorized separate from an energy generation facility are authorized with a right-of-way grant for up to 50 years. Paragraph (d)(6) provides that electric transmission lines with a capacity of 100 kV or more are authorized with a right-of-way grant for up to 50 years. The BLM did not make a change to this section of the final rule. Commenters raised concerns with a 50-year authorization term for large development projects because, they suggested, the longer the public lands are occupied by a wind or solar project the longer it will likely take for those lands to fully recover after removing the project. Commenters also suggested that the longer-term authorization may unreasonably occupy the public lands with a solar or wind energy development when preferable or newer energy technology could be deployed there. The BLM disagrees with comments that assert the increase of the maximum term of an authorization from 30 years to 50 years is inappropriate because preferable technology may be desired at that location in the future. The BLM acknowledges that recovery of impacts might be greater for a 50-year right-of-way term. However, the BLM will analyze the environmental impacts of each proposed project, including the end of project life activities such as reclamation and restoration of public lands, under NEPA, and will consider the appropriate term for each proposed right-of-way, before deciding whether to approve for deny a proposed right-of-way for energy development. Additionally, BLM notes that most of the ground-disturbing impacts of solar or wind development come during the construction phase, so the environmental effects of a 50-year authorization are therefore likely to be similar to the effects of a 30-year authorization with respect to recovery. Any such impacts, however, will be considered on a case-by-case basis, in compliance with NEPA, when the BLM evaluates each proposed project. Through this process, the BLM will consider the reasonably foreseeable use of public lands, including the technology proposed by an applicant and the environmental consequences of that use, when deciding whether and for what duration to authorize solar or wind energy development on the public lands. Some commenters argued against increasing the maximum term length for a right-of-way and expressed concerns about the economic and environmental impacts and the lifespan of energy generation equipment. Commenters suggested that a longer term to an authorization may not be appropriate due to the shorter lifespans of solar panels and wind turbines (30 years for solar and 20-25 years for wind), and that a shorter initial term, like the current 30-year term, instead of 50 years may be more suitable. The BLM understands the concerns raised by commenters regarding the proposal to increase the maximum term length for solar and wind energy development authorizations. In the BLM's experience, the lifespan of solar and wind energy projects has been increasing over time as the technologies advance. When the BLM last updated its rules for solar and wind energy in 2016, the lifespan of a solar or wind project was approximately 20 years. The 30-year term was appropriate for such a length, considering the amount of time necessary to construct a project and then the expected time to decommission and reclaim and restore the public lands during the authorization term. With increasing lifespans of solar and wind equipment, a longer-term right-of-way is appropriate. See recent Berkeley National Laboratory, Results from a Survey of U.S. Wind Industry Professionals, 4 and the Department of Energy's, Photovoltaics End-of-Life Action Plan, 5 for a discussion of wind and solar energy project lifespans. 4 https://emp.lbl.gov/publications/benchmarking-anticipated-wind-project. 5 https://www.energy.gov/sites/default/files/2022-03/Solar-Energy-Technologies-Office-PV-End-of-Life-Action-Plan_0.pdf. However, the BLM has made changes to other parts of the rule to address the commenters' concerns about dedicating public lands for up to 50 years to certain projects or uses that, over time, may become less efficient, see a significant decrease in production, or become entirely inactive. These changes also address concerns about public lands being used unlawfully for purposes other than those identified in the ROW grant ( e.g., a former solar or wind generating site being used for equipment storage). In particular, the changes impose conditions aimed at ensuring diligent operations on the public lands, see § 2805.12(c)(8). These are in addition to the BLM's existing diligent development requirements under § 2805.12(c)(7). Commenters suggested that the BLM evaluate changes to the environment or technology during the term of an authorization after it has been approved. The BLM did not adopt this suggestion. Once the BLM issues a final decision, the BLM would only re-address technological changes or environmental impacts during the term of an authorization if the BLM undertakes a new decision-making process, such as in response to a ROW holder's proposed change in technology. The BLM's original analysis for a proposed facility considers the environmental effects of the facility and technology proposed by the applicant for the term of the proposed authorization, informing the BLM's decision to deny, approve, or approve with modification the proposed project. Any subsequent changes in equipment used at the site that would result in changes to environmental impacts that may occur after the BLM issues its decision, would be analyzed at the time the BLM considers issuing a new decision, based on the relevant information available at that time. The BLM may complete a new decision-making process to adjust the terms and conditions of the authorization under existing § 2805.15(e) under certain circumstances, such as a change to legislation or regulations, when necessary to protect public safety, an environmental change ( e.g., new threatened or endangered species listing), or if proposed changes to technology may result in additional or different environmental impacts. One comment requested clarification on how § 2801.9 may be modified based on outcomes of the ongoing update to the Western Solar Plan. The analysis of environmental impacts of energy development and decisions made in updating the Western Solar Plan do not affect this final rule, which that provides BLM procedures and requirements when administering applications and authorizations for solar and wind energy development projects. Some comments suggested that proposed energy storage facilities and proposed energy generation facilities should be reviewed in separate NEPA documents due to differences in fire risk and toxicity concerns. While it is beyond the scope of this rulemaking to speculate as to how the BLM will comply with NEPA when evaluating individual projects, the BLM agrees that energy storage facilities may have environmental impacts that are distinct from those posed by energy generation facilities. Nevertheless, the BLM can prepare a single NEPA document to evaluate impacts from energy generation facilities and energy storage facilities and may find it appropriate to do so in certain circumstances. Subpart 2802—Lands Available for FLPMA Grants or Leases The BLM proposed to revise the title of subpart 2802 to include “or leases” to clarify for readers that public lands are available for both grants and leases, consistent with other revisions in this rule regarding leases. No comments were received on this, and the BLM did not make changes to the final rule. Section 2802.11 How does the BLM designate right-of-way corridors and DLAs? Section 2802.11 explains how the BLM designates right-of-way corridors and DLAs through its land use planning process. This section includes a non-exhaustive list of factors the BLM could consider when designating such areas under its land use planning process described in 43 CFR part 1600. Other technical changes in § 2802.11(b) improve readability and consistency between the BLM's regulatory authority under part 2800 and its statutory authority under FLPMA. The BLM did make changes to this section of the final rule. Paragraph (b)(1) is unchanged from the proposed rule and includes Tribal land use plans that BLM reviews for consistency when it is developing, amending, or revising a land use plan in accordance with Section 202(c)(9) of FLPMA (43 U.S.C. 1712(c)(9)). Paragraphs (b)(10) and (b)(11) add criteria that the BLM may consider when designating new leasing areas for solar and wind energy. Paragraph (b)(10) adds “access to electric transmission,” and paragraph (b)(11) provides for consideration of relatively large areas where energy development is feasible and there is a low potential for conflict due to environmental, cultural, and other relevant criteria, including assessing the demand for new or expanded areas; applying environmental, cultural, and other screening criteria; and analyzing proposed areas through the land use planning process described in part 1600. The BLM received comments about whether the BLM's proposal to carry forward three of the four criteria from the 2012 Western Solar Plan is consistent with other BLM planning actions. The BLM carried these three criteria forward from the 2012 Western Solar Plan, which is consistent with other BLM plans identifying solar and wind energy development areas. Some commenters suggested that the BLM redesignate proposed paragraph (b)(11) as paragraph (b) and redesignate existing paragraphs (b)-(d) as newly designated paragraphs (c)-(e). The BLM did not change the rule due to this comment. Reorganizing the paragraphs as suggested would be confusing to a reader as considerations for solar energy would no longer be located together in one subparagraph. The BLM did revise paragraph (b)(11) to clarify that the factors BLM considers include “whether there are areas” consistent with revisions under paragraph (b). One comment requested that wording be amended to “clarify that BLM may require sharing a gen-tie right of way subject to reasonable terms.” The term “gen-tie” refers to a generation interconnect transmission line that connects the original source electric generation (for the purposes of this rule, a wind or solar energy development) to the transmission system. These gen-tie lines are typically less than 5 miles long and require a right-of-way grant if they cross public lands. The BLM retains authority under 43 CFR 2805.15(b) to allow or not allow such common use of the right-of-way. Commenters suggested that the BLM alter the language of proposed § 2802.11(b), which identifies factors or criteria that the BLM may consider when designating an area of public land as a right-of-way corridor or a DLA. Some commenters recommended replacing the proposed term “may” with “must.” Other commenters suggested expressly incorporating all of the considerations listed in 43 U.S.C. 1712(c), which governs criteria for consideration by BLM when it prepares land use plans, to this section. Other commenters suggested that the BLM add transmission and electric infrastructure to the list of criteria or factors. Finally, some commenters agreed with the language in the proposed rule, which provides a non-exclusive list of factors or criteria that the BLM may consider when designating a corridor or a DLA. After considering comments on this section, the BLM did make some changes to this paragraph in the final rule. While § 2802.11(b) provides examples of criteria that the BLM may consider, some of the listed criteria might not be relevant in all cases, and the BLM may consider additional factors or criteria as appropriate. Further, the BLM's land use planning regulations, 43 CFR 1600, provide additional direction for complying with the requirements of Section 202 of FLPMA, 43 U.S.C. 1712. The BLM did not add transmission and electric infrastructure to the list of criteria or factors because the proposed rule already included “access to electric transmission,” which is retained as a criterion or factor in the final rule. However, the BLM revised paragraph (b) to replace “factors the BLM may consider include, but are not limited to, the following” to read as “the BLM may consider various factors, including” to clarify what the BLM considers when designating such areas. Commenters suggested that adding three criteria to a list of other criteria for the BLM to consider may create confusion. Some commenters supported the BLM adding paragraphs (b)(10) and (b)(11) to provide more detail of what and how the BLM considers when designating new leasing areas. Other commenters requested the BLM evaluate criteria for designating exclusion areas in addition to the criteria for designating DLAs and right-of-way corridors. The BLM believes that adding the three additional criteria for consideration when designated corridors and leasing areas is appropriate and provides for transparency when the BLM begins its land use planning processes to designate leasing areas. The BLM does not agree that exclusion criteria are appropriate when identifying DLAs. However, paragraph (d) of the existing regulations provides broad discretion for the BLM to identify areas where the BLM will not allow rights-of-way, which may include criteria to identify exclusion areas during the land use planning process. During the land use planning process, the BLM engages Federal, Tribal, State, and local government partners and the public to inform and clarify the factors analyzed when considering whether to designate exclusion areas. Including these criteria in the final rule will minimize the confusion that may arise in the future. Some comments requested that the final rule include additional criteria for designating exclusion and avoidance or variance areas. Commenters suggested that including these criteria would encourage the appropriate designation of such areas and thus focus on processing right-of-way applications only in areas where development is best suited. The BLM disagrees with commenters that additional criteria for designating exclusion and avoidance or variance areas should be included in the final rule. Such criteria do not need to be included in the final rule and are better suited for policy ( e.g., instruction memoranda), which can be implemented consistent with this rule and other applicable regulatory authority and environmental analysis, while also providing appropriate flexibility in the process. Further, exclusion criteria are based on the environmental impacts of a program on the public lands, which are identified through a NEPA analysis, such as the ongoing Western Solar PEIS that is updating the 2012 Western Solar Plan. Lastly, this final rule updates its prioritization principles under 2804.35, which were not in place in 2012 with the Western Solar Plan. The BLM believes that with the robust public engagement, prioritization principles, and other preliminary application review meetings, holding a variance process is not necessary in administering applications for solar and wind energy development. Section 2803.10 Who may hold a grant or lease? Section 2803.10 provides the criteria for who may hold a grant or lease. In this final rule, the BLM clarifies that a holder who is of legal age and authorized to do business in one State must also meet this requirement in each other State in which the right-of-way grant they seek is located. No comments were received on this section, and the BLM did not make changes to this section of the final rule. Section 2803.12 What happens to my grant if I die? In the notice of proposed rulemaking for this rule, the BLM proposed to add new paragraph (a) and redesignate existing paragraphs (a) and (b) as paragraphs (b) and (c). This final rule does not carry forward those proposed revisions because another final rule included revisions that addressed those concerns. The BLM's final rule “Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way,” (89 FR 25922) [April 12, 2024] updated § 2803.12 to remove reference to applications in the section title and paragraph (a). This final rule retitles this section and revises paragraphs (a) and (b) to include “or lease” clarifying that this section applies to both grants and leases. Paragraph (b) of this final rule replaces the word “distributee” with “receiver” to improve clarity to readers that when the BLM distributes a grant or lease, the instrument would be received by the holder. This final rule also includes the provision that unqualified receivers of a right-of-way must comply with all terms, conditions, and stipulations. One comment suggested that the BLM clarify paragraph (b) to state that distribution will take place under state law in the state where the grant or lease is located. Including this suggested change could be inaccurate and potentially unenforceable. The BLM's rules should not dictate distribution of a lease as an inheritable interest in all instances. Section 2804.12 What must I do when submitting my application? Section 2804.12 explains what an applicant must do when submitting a right-of-way application. The BLM proposed changes to paragraphs (c) and proposed to add paragraphs (f) and (j). The BLM did make a change to this section of the final rule. Paragraph (c) provides for additional requirements for solar and wind energy development or short-term rights-of-way. Paragraph (c)(1) requires payment of an application filing fee for solar and wind energy development and short-term applications as an initial payment toward cost recovery payments. The BLM will refund the balance of the application filing fee if it exceeds the processing costs. Paragraph (c)(1) is revised for readability and now reads “payment toward cost recovery” instead of “payment towards cost recovery.” Paragraph (c)(2) requires payment of additional reasonable costs in addition to application filing fees. See existing § 2804.14 of this part for further information on reasonable costs in processing an application. Payment of category 6 cost recovery fees—which are based on full costs and are collected if the BLM has determined that processing efforts will take more than 64 hours to complete—may be reduced by the application filing fee that is paid when submitting an application. Some comments requested lower fees for application submittal. Another comment suggested that the BLM keep the application fee until all “reasonable costs” are paid before any refund is given. Under the existing regulations, application filing fees are a payment of reasonable costs for the United States to process an application and are intended to discourage applicants from unnecessarily applying for more land than is reasonable for a solar or wind energy development. As updated by this final rule, these application filing fees continue to be a payment of reasonable costs and may now clearly be applied to the processing fees, such as through a cost recovery agreement. Any overpayment of these costs may be reimbursed to the applicant or carried to cover the inspection and monitoring of the right-of-way, if authorized. Entering into a cost recovery agreement requires action by the BLM and applicant to complete, including the prioritization of an application under § 2804.35 by the BLM and payment of reasonable costs identified by the BLM in a cost recovery agreement. Multiple comments suggested the BLM issue a cost recovery agreement within a certain timeframe, such as 30 days of receiving the required information. The BLM agrees that it is important for the BLM to be responsive to applicants who have provided the required information under this section. The proposed rule added paragraph (j) providing that an application is complete when an applicant submits the required information under this section. Upon receiving a complete application, the BLM would determine what cost recovery amounts would be necessary, and whether that should be under a cost recovery agreement. See § 2804.14 for further information. The BLM would notify an applicant within 30 days pursuant to § 2804.25(d) whether processing their application will take longer than 60 calendar days and what the expected processing timeframe is for the application. Section 2804.19 of the BLM's right-of-way regulations provides that the BLM and applicant work together to establish and issue the cost recovery agreement; the length of that process can vary widely based on a number of variables including project complexity, analysis of the needs from a cost recovery agreement, and needed inputs from the developer. As noted under the previous comment response, entering into a cost recovery agreement requires action by the BLM and applicant to complete, including prioritization under § 2804.35 by the BLM and payment of reasonable costs identified by the BLM in a cost recovery agreement. Section 2804.12(f) of this final rule clarifies that the BLM may require additional information at any time while processing an application. Additional information may be necessary, such as environmental resource data. The BLM will issue a deficiency notice pursuant to existing § 2804.25(c) to inform applicants of additional information requirements. Comments requested that the BLM provide clear application requirements and limit the BLM's ability to request additional information beyond those requirements. The BLM believes that the existing rules clearly state what is required for applications under 2804.10, What Should I do before I file my application? ; in § 2804.11, Where do I file my grant application? ; and as updated by this final rule, § 2804.12, What must I do when submitting my application? Paragraph (f) of this final rule provides that BLM may request additional information while processing an application. Additional information may be requested under 2804.25(c) after an application is determined to be complete pursuant to added paragraph (j) of this final rule. Paragraph (j) describes that a complete application meets or addresses the requirements of § 2804.12, as appropriate for the application submitted. Some comments asked the BLM to clarify the definition of “complete application” in paragraph (j). The BLM believes that new paragraph (j) clearly describes what a complete application is. Upon satisfying the requirements of this section, the BLM will provide the applicant notice in writing that the application is complete. Some commenters suggested that the BLM provide a determination of application completeness within specified timeframes to promote a timelier application process. The BLM agrees that it is important to remain diligent in processing an application. However, the BLM did not propose to implement any timeframes for determining an application is complete as this section of the rules applies to applications for all rights-of-way, not just solar or wind energy applications. Reasonable expectations for timely and diligent application requirements will vary depending on the complexity of processing a certain type of system or use on the public lands. Section 2804.14 What is the processing fee for a grant application? The BLM recently published its final rule “Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way” (89 FR 25922) [April 12, 2024]. In that final rule, the BLM updated its address within this section. The proposed updates that the BLM included in this rulemaking are no longer necessary. No comments were received, and the BLM did not make a change to this section in this final rule. Section 2804.22 How will the availability of funds affect the timing of the BLM's processing? Section 2804.22 of this final rule clarifies how the availability of funds may affect the BLM's schedule for processing an application. Paragraph (a) clarifies that when the BLM is processing an application, it will not continue to process the application until funds become available or the applicant elects to pay full actual costs under § 2804.14(f). Paragraph (b) provides that the BLM may deny an application after 90 days if it has requested reasonable costs for processing an application and the proponent has failed to provide funds for reimbursement. The BLM did not change this section of the final rule. One commenter supported denying applications for which fees had not been paid. Such a procedure, the commenter suggested, would disincentivize applicants from submitting applications that they do not intend to diligently process. While the BLM will not deny an application without cause, as described in more detail under § 2804.26, the BLM agrees that failure to diligently pursue an application, including unfunded application cost recovery agreements, and incomplete applications, among other reasons are good cause for denying an application. Denying applications for these reasons would deter applicants from submitting applications for projects that they do not intend to diligently pursue. Paragraph (c) of this final rule provides that funds paid towards the cost recovery agreement for a project may not be refundable. Such funds would be those identified in the cost recovery agreement for hiring additional staff or contractors and agreed to by the applicant or right-of-way holder. Some comments supported the idea of cost recovery agreements that would allow the BLM to hire additional staff or contractors to aid in application processing and reduce processing times. This requirement helps ensure that there is available funding to the United States for reasonable costs of the government, including those BLM hiring and contracting decisions made to support processing applications. Section 2804.23 What costs am I responsible for when the BLM decides to use a competitive process for my application? Section 2804.23 of the final rule describes what costs an applicant is responsible for when the BLM decides to use a competitive process. Paragraph (b) requires, for cost recovery processing categories one through four, payment of cost recovery processing fees as if the other applications had not been filed. Paragraph (c) clarifies who is responsible for processing costs within processing category six. The BLM did not make a change to this section of the final rule. One comment suggested the language be changed to read, “What costs am I responsible for if the BLM decides to use a competitive process for my application?” The BLM considered this change in title to the section and believes that the proposed naming of this section is clear with respect to what costs the applicant will be responsible for when the BLM determines it will use a competitive process. Section 2804.25 How will the BLM process my application? In the final rule, the BLM revised § 2804.25(c) to add that, if an applicant fails to comply with a deficiency notice under this section, the BLM may deny the application. To ensure that developers proceed diligently after entering into a cost recovery agreement, § 2804.25(c)(1) requires applicants to “commence any required resource surveys or inventories within one year of the request date, unless otherwise specified by the BLM.” If the applicant fails to comply with a deficiency notice under that provision, the BLM may deny the application. See § 2804.26(a)(9). To clarify that the BLM retains the discretion to deny an application where the applicant does not proceed diligently, the final rule adds to § 2804.25(c): “Failure to meet requirements under this section may result in the BLM denying your application pursuant to § 2804.26.” This added provision clarifies that the BLM retains the discretion to deny an application where the applicant does not proceed diligently. This change is consistent with changes made to § 2809.10(e) regarding when the BLM will no longer hold a competitive process. Together these amendments give the industry the certainty it needs to proceed with projects while retaining the BLM's discretion to deny an application or offer lands competitively if the applicant does not proceed diligently. In that way, these amendments balance the BLM's obligations to incentivize renewable energy development on public lands and to recover a fair return for U.S. taxpayers. In this section, the BLM proposed removing a mandatory public meeting that is unique to solar and wind energy rights-of-way applications and is in addition to other public participation that would occur as part of the BLM's environmental review process. Paragraph (e)(2) describes public meeting requirements for solar or wind energy right-of-way applications. In the final rule, paragraph (e)(2) provides that the BLM may hold a local public meeting if there is no other public meeting or opportunity for early engagement. In other words, the final rule would require the BLM to hold a public meeting, offering the public opportunity to engage early, though the BLM could satisfy this requirement by holding a public scoping meeting or other public meeting that facilitates early engagement by the public. Commenters suggested that the BLM provide a website of applications and authorizations for interested parties so that they could receive up-to-date information on the applications and authorized projects. The BLM agrees with comments about maintaining a site that is accessible to the public on existing and proposed ( i.e., applications for) projects on public lands. The BLM currently maintains an active web page at https://www.blm.gov/programs/energy-and-minerals/renewable-energy/active-renewable-projects where the public may access the most recent information on applications for solar, wind, and geothermal development projects, gen-tie-lines, upcoming lease sales, and other relevant application and development information about these sites. Some comments supported the removal of the requirement that BLM hold pre-processing public meetings, noting that solar and wind energy technologies are better known now than they have been previously and that these meetings are unnecessary. The BLM also received comments that did not support removing that requirement. These comments expressed concerns that by removing this public meeting the BLM would be excluding the public and should instead increase outreach to the public in the area affected by these proposed development projects. To address these concerns, the BLM has changed the regulatory text in paragraph (e)(2)(i) to ensure that a public meeting is held if there is no other opportunity for the public's early engagement. The BLM also would retain discretion to hold additional public meetings under § 2804.25(e). Paragraph (e)(4) is updated to replace “the National Environmental Policy Act (NEPA)” with “NEPA,” consistent with the changes in paragraph (e)(2) of this section. The BLM updates the reference in this final rule, consistent with changes that CEQ has made to its regulations, such that 40 CFR parts 1501 through 1508 are now referred to as 40 CFR Chapter V, Subchapter A. Paragraph (e)(5) provides that the BLM will determine whether the proposed use complies with applicable Federal laws. Paragraph (f) addresses the segregation of lands within a right-of-way application. Paragraph (f)(3) now provides that a segregation may be extended when an application is complete and cost recovery has been received. Some comments suggested that the 2-year segregation limit is appropriate, that the BLM should begin NEPA within 2 years of segregating the lands, and that such limitations should be consistent with the NEPA timeline requirements within the Fiscal Responsibility Act. The BLM agrees that the agency should be diligent in processing applications, including initiating NEPA. Because separate legal authority and policy guidance applies to NEPA compliance procedures, including applicable timelines to complete the NEPA process, the BLM did not make a change to this paragraph of the final rule in response to these comments. Some comments suggested additional language should be added to establish timelines and deadlines supporting quick action in processing applications. Section 2804.25(c) in the existing regulations provides specific due diligence requirements for applications. Unless another timeline is specified by the BLM, applicants have one year to complete certain actions, and the BLM may deny an application for failure to comply with the one-year requirement or other specified timeframe for submitting necessary information to the BLM. The BLM believes this timeline is generally adequate to promote the timely processing of applications and permitting of solar and wind development projects and to ensure that developers cannot hold public lands by submitting, but not diligently pursuing, an application, thus precluding other uses of such lands. The BLM did not change the final rule in response to these comments. The BLM received requests to revise the rule to require automatic segregation once an applicant has filed a complete application and has paid the required application fees and grant extensions past the four-year mark. Changing the method to segregate lands and the timeframes of those segregations is outside the scope of this rule. The BLM did not propose to change the method and timing of segregation, but only to make this paragraph consistent with new provisions in the final rule for complete applications and cost recovery. Section 2804.26 Under what circumstances may the BLM deny my application? Section 2804.26 of this final rule explains the circumstances under which the BLM may deny an application. Paragraph (a)(4), consistent with this final rule replacing the term “the Act” with “FLPMA” discussed under § 2801.5, provides that the BLM may deny your application if issuing the grant would be inconsistent with applicable law or regulation. The BLM did not carry forward paragraph (a)(9) of the proposed rule because the BLM's final rule, “Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way,” 89 FR 25922 (April 12, 2024) revised the BLM regulations at § 2804.26(a) to add the same provision allowing the BLM to deny applications that fail to comply with a deficiency notice . Thus, the revision in the proposed rule that would have added this provision is no longer necessary. Paragraph (10) incorporate requirements of this final rule that are discussed elsewhere. Paragraph (a)(10) provides that an application may be denied for failing to pay costs, as noted in § 2804.22(b). As proposed, paragraph (c) is removed in this final rule. Any request for an alternative requirement received after an application has been denied is not a timely request. Requests for an alternative requirement must be timely. See § 2804.40(c) for further information on timely requests. The BLM received a comment recommending that the BLM add another provision following section (a)(4), suggesting that this new provision address protection of special conservation areas managed by the BLM or other federal or state agencies. The BLM believes that including the suggested change to this section is unnecessary. The BLM's process to deny an application under this section is addressed in the existing regulations at § 2804.26. The BLM's management of special conservation and other sensitive areas is generally determined through the BLM's resource management planning and NEPA processes. The BLM retains broad authority to deny an application on the basis that it would not be in the public interest, which may also address this concern to deny certain applications. Section 2804.30 [Removed and Reserved] Section 2804.30 is removed and reserved in this final rule. No comments were received on this section and the BLM did not make any changes to this section in the final rule. Prior § 2804.30 addressed competitive leasing inside of designated areas. The content of the prior § 2804.30 is now duplicative of this final rule in §§ 2809.13, 2809.14, and 2809.17. Section 2804.31 [Removed and Reserved] Section 2804.31 is removed and reserved in this final rule. Prior § 2804.31 addressed competitive process for site testing. This portion of the rule was not used since first put in place in 2016 and is removed. The BLM may still hold competitive processes for site testing if there is a competitive interest or other reasons as identified in § 2809.10 of this final rule. Some comments supported the removal of competitive processes for site testing grants, and other commenters suggested that the section may be useful in local field office decision making in the future. The BLM agrees that retaining requirements for competitive processes related to solar and wind energy is important. Subpart 2809 of this final rule provides the requirements for solar and wind energy competitive processes, which includes the requirements of this section. Section 2804.35 Application Prioritization for Solar and Wind Energy Development Rights-of-Way Section 2804.35 is retitled to “Application prioritization for solar and wind energy development rights-of-way.” This section provides for the relative importance of different criteria that vary from location to location, giving weight to local resource issues and circumstances that are not equally relevant for every application. Additionally, there are practical concerns for the BLM when processing solar and wind energy applications. This section provides that the relevant criteria are to be applied holistically to prioritize applications in a manner that would facilitate environmentally responsible projects and ensure that agency workloads are allocated appropriately. The revised section would also explicitly recognize that the BLM may identify additional criteria in guidance, which may be national in scope or specific to an area. Paragraph (a) clarifies that the purpose of prioritizing applications is to allocate agency resources to processing applications that have the greatest potential for approval and implementation. The BLM revised this section from the proposed rule to clarify that the BLM's prioritization of an application is not a decision and is not subject to appeal under 43 CFR part 4. One commenter asked whether the BLM's prioritization process might hinder development of renewable energy and potentially conflict with national priorities for renewable energy deployment. The BLM is endeavoring to increase the responsible deployment of renewable energy on the public lands consistent with congressional and presidential direction. In addition, the BLM must continue to manage public lands under the principles of multiple use and sustained yield unless otherwise provided by law (43 U.S.C. 1732(a)). The prioritization criteria support national renewable energy goals by helping the BLM to consider applications for the projects that are most likely to succeed and ensure the BLM's continued stewardship of the public lands. Paragraph (b) identifies criteria that the BLM may consider when prioritizing applications. This section provides discretion to the BLM as to how best to apply the criteria to prioritize processing solar or wind energy generation applications. Some comments suggested prioritizing applications for projects inside DLAs. Other comments suggested other criteria that should be considered when prioritizing applications, such as the presence of existing leasing agreements and rights-of-way, whether the application complies with all state and federal regulations, the size or location of the project, project features, proximity to transmission, and protection of natural resources. The BLM believes that these considerations are important, but no changes to the regulatory text are warranted since these considerations were already included in the proposed rule. The six listed criteria in the rule provide flexibility in how the BLM may apply the criteria for applications in the BLM's varied landscapes on which a resource may have different sensitivities in one location as compared to another location. Prioritizing projects based on siting in designated or preferred areas is addressed in paragraph (b)(1). The BLM addressed comments concerning existing leasing agreements or rights-of-way in the BLM's application processing steps in subpart 2804 of these rules. Paragraph (b)(4) addresses commenter suggestions regarding prioritizing applications based on compliance with federal regulation. Paragraphs (b)(2) and (b)(5) address the size or location, project features, proximity to electric transmission, and the protection of natural resources. Several comments requested clarity on the application of the prioritization criteria, including a description of the relative importance of each criterion. Other commenters also suggested that they believe the BLM should be prohibited from prioritizing applications based on additional criteria that are not expressly listed in this section of the rule. In the BLM's experience, the relative importance of different criteria may vary from location to location due to resource considerations. Likewise, not all prioritization criteria are equally relevant for every application. The BLM has intentionally not set specific preferences or weights for the criteria it will apply when prioritizing applications. This final rule confirms that the BLM will consider the prioritization criteria holistically when considering applications, and that the BLM may establish additional criteria through local or national policy guidance. In the final rule, the BLM changed paragraph (b) to refer to “criteria” instead of “factors” as proposed. This change is consistent with the BLM's use of the term “criteria” in paragraph (b)(6). The first criterion is whether the proposed project is located within an area preferred for such development, such as a DLA. The BLM may reasonably presume that development projects proposed within these areas are more likely to proceed to approval as they pose less severe resource conflicts than other lands. Some comments suggested that wind energy is disadvantaged since there are no wind energy designated leasing areas or equivalents. The BLM disagrees with these comments. First, the 2016 Desert Renewable Energy Conservation Plan ( https://blmsolar.anl.gov/documents/drecp/ ) designated more than 192,000 acres of preferred development locations for solar, wind, and geothermal energy. Additionally, the criteria are not given specific preferences or weights when compared with one another, and, as such, the BLM would take into account the lack of wind DLAs when prioritizing wind energy development applications. The second criterion is whether the proposed development avoids adverse impacts to or conflicts with known resources or uses on or adjacent to public lands and includes specific measures designed to further mitigate impacts or conflicts. When submitting an application to the BLM, the applicant must address known potential adverse resource conflicts, including those for sensitive resources and values that are the basis for special designations and protections, as well as potential conflicts with existing uses on or adjacent to the proposed energy generation facility. Under section 2804.12(b)(2), the applicant must also include specific measures to mitigate impacts or conflicts with resources and uses. Including this information is necessary for the BLM to determine that an application is complete. While subsequent consultation, public comment, and environmental review processes may reveal unknown resource or use conflicts, based on previous experience permitting wind and solar projects on public land, the BLM understands that projects with fewer known conflicts are more likely to proceed to approval and successful implementation. The third criterion is whether the proposed project is in conformance with the governing BLM land use plans. Applications identify whether the proposed project is in conformance with the governing land use plan or would require an amendment or revision to the plan. The BLM may, in its discretion, consider applications for solar or wind energy generation facilities that would require an amendment or a revision to the governing land use plan under part 1600 of these regulations. However, such application could require greater resources to process and could present resource conflicts, which would result in a lower priority. The fourth criterion is whether the proposed project is consistent with relevant State, local, and Tribal government laws, plans, or priorities. The purpose of this determination is not to enforce these State, local, or Tribal laws, plans, or priorities, but rather to promote comity and identify projects that are more likely to be successfully approved. In addition, applying this principle helps to ensure that the BLM takes into account the existing resource knowledge and expertise that may be available through State, local, and Tribal plans and priorities. To carry out this prioritization, the BLM may enter into or rely on existing agreements with State, local, or Tribal governments. Some comments suggested that prioritization of an application should be subject to Tribal consultation. The BLM engages Federally recognized Tribes early in the application process under § 2804.12(b)(4), which allows Tribes to participate in preliminary application review meetings with the BLM and provide early information to the BLM about an application. Additionally, under paragraph (b)(4), the BLM will consider “whether the proposed project is consistent with relevant State, Tribal, and local government laws, plans, or priorities,” which may also include consultation with Tribes. Finally, the BLM acknowledges that E.O. 13175 sets forth criteria for when the BLM is required to consult with Tribes, and the BLM is committed to consulting with Tribes whenever such consultation is required under the E.O., without regard to whether that requirement is specifically articulated in this rule. The fifth criterion is whether the proposed project incorporates the best management practices set forth in the applicable BLM land use plans and other BLM plans and policies. This principle ensures that the BLM takes into account the knowledge and expertise that has gone into formulating these existing plans and policies. Should an application require amending a BLM land use or other plan, it is likely to require more time and effort to process. The sixth criterion considers any other circumstances or prioritization criteria identified by the BLM in subsequent policy guidance or land use planning for an area. Paragraph (c) provides that the BLM will prioritize applications, once complete (as described in § 2804.12(j) of this part). The BLM's prioritization may use any available information provided in the application or its Plan of Development, applicant responses to deficiency notices, and information provided to the BLM in public meetings or by other Federal agencies and State, local, or Tribal governments. Paragraph (d) clarifies the BLM discretion to re-categorize an application's priority at any time. Re-categorizing an application may be based on new information that the BLM has received or on changes the applicant has made to the application. Re-categorizing an application may also be based on the BLM's need to adjust its workload, if circumstances warrant such re-prioritization. Some comments expressed concern that denying or de-prioritizing an application prior to any final land use designation, such as those which may be made in the ongoing update to the 2012 Western Solar Plan, is inappropriate or pre-decisional. Comments further expressed that pending applications should not be denied before land use designations are made. The BLM is not constrained by ongoing or potential future land use planning processes, but it must manage public lands in conformance with the land use plans currently in effect. Accordingly, the BLM generally will not deny or deprioritize an application based on non-conformance with a future or ongoing land use planning effort. The criteria in the rule refer to consideration of governing land use plans. The BLM would deny or de-prioritize an application pursuant to its broad discretion in considering right-of-way applications based on existing information and existing land use plans. At the same time, the BLM retains authority to deny an application based on appropriate informati [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-08099. Public record. Not legal advice.