Pre-National Environmental Policy Act (NEPA) Assessment Process for Wind and Solar Energy Development Applications

This Instruction Memorandum (IM) identifies the pre-NEPA assessment requirements for applications for wind and solar energy development on public lands in Idaho, adapted from the materials and process framework identified in IM No. 2023-015, Variance Process for Solar Energy Applications.

In accordance with Federal regulations under Title 43 Code of Federal Regulations (CFR) Part 2800, the BLM will notify applicants in writing upon receipt of their application and identify the required processing fees for the reimbursement of reasonable costs for application processing. Pursuant to 43 CFR 2804.14(d), after an initial review of the application, the BLM will notify the applicant of the processing category into which their application fits and incorporate the application filing fees into this determination. The applicant must then submit the appropriate payment for that category before the BLM begins processing the application. The pre-NEPA assessment is part of application processing and, therefore, cost recovery is appropriate consistent with 43 CFR 2804.19(e). As the BLM develops cost recovery estimates for the December 18, 2023 processing of applications, the BLM should consider all reasonable costs that may be incurred by the BLM and other Federal agencies and ensure all measures are taken to collect and manage these funds.

Screening and prioritization of applications that are less likely to be developed is required to reduce Bureau workloads; to facilitate accelerated processing and decision-making for projects with the greatest technical and financial feasibility and the fewest anticipated natural and cultural resource conflicts; and to enhance consistency across all BLM Idaho offices. As such, the preNEPA assessment process described in this policy shall be applied only once an application has been initially screened and prioritized (see IM-2022-027, Initial Screening and Prioritization for Solar and Wind Energy Applications and Nominations/Expressions of Interests) and the appropriate cost recovery processing fees have been collected from the applicant. Attachment 1 provides a checklist for the pre-application, application screening and prioritization, and preNEPA assessment process. Applications ranked as high- or medium-priority by the Authorized Officer are eligible to move into the pre-NEPA assessment process. Any application ranked as a low priority shall not proceed into the pre-NEPA assessment process until the Authorized Officer has completed the review of higher priority applications in that area.

To start the pre-NEPA assessment process, the applicant must submit all necessary information and materials with their application package, and the BLM must determine that the application is a high or medium priority. Once the proponent has submitted a sufficient application package, the pre-NEPA assessment process, outlined in Attachment 1, is expected to take approximately 6 months (starting with a sufficient application package through the pre-NEPA assessment process). The steps and tasks listed in Attachment 1 can often be completed concurrently to allow for a more timely determination of application acceptability. The timeline may be shorter or longer based on the circumstances of each application.

The BLM will ensure that applicants have proactively evaluated and comprehensively described the probable effects that the project may have on elements of the human and natural environment as described in the Right-of-way Application Standard Form 299 (SF-299) in items 16-18. To support the BLM’s review of this requirement, the pre-NEPA assessment process requires the applicant to prepare a Renewable Energy Factors Analysis Report (REFAR). A table of contents template and additional factors to be considered through the preparation of the REFAR are provided in Attachment 2 and Attachment 3, respectively. The BLM’s initial review of the REFAR will begin at the first steps of the pre-NEPA assessment process (see flowchart in Attachment 6). The BLM will consider whether the application should move through the preNEPA assessment process and continue to be processed based on, among other things, the sufficiency of the applicant’s comprehensive evaluation of reasonably foreseeable effects and applicant-proposed specific mitigation measures. Generalized mitigation statements (e.g., “All impacts will be mitigated.”) will not be accepted.

Based on the BLM’s evaluation of the information provided by the applicant through the preNEPA assessment process and input of Federal, State, and local government agencies, Tribes, and the public through preliminary application review meetings, the Authorized Officer will determine whether it is appropriate to continue to process the application, request the applicant to modify the application, or deny the application. The BLM may also consider whether the applicant has demonstrated that the proposed wind or solar project is expected to be compatible with state and local plans and will likely be able to acquire the required permits and/or authorizations of all other relevant jurisdictions to implement the project. The BLM will document the determinations resulting from the pre-NEPA assessment process with a Pre-NEPA Assessment Information Briefing Memorandum (Attachment 4) and a Pre-NEPA Assessment Concurrence Memorandum (Attachment 5).

The BLM has broad discretion under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701) to deny ROW applications prior to performing or completing the NEPA process. If through the application screening and prioritization process or after the pre-NEPA assessment process it is determined that circumstances described in 43 CFR 2804.26(a) apply to the application, the Authorized Officer may deny the application after coordination with the State Director. Such decisions must be made with regard for the public interest and be supported by reasoned analysis and an adequate administrative record. Decisions to deny ROW applications must be assessed on a case-by-case basis. Denial of an application is subject to administrative appeal to the Interior Board of Land Appeals.

All ROW applications that the BLM determines to be appropriate for continued processing will, at the applicant’s expense, be processed in compliance with NEPA and all other applicable laws, regulations, and policies. Generally, the BLM uses the NEPA process to help support compliance with applicable procedural requirements under Federal laws, including the Endangered Species Act (16 USC 1536) and Section 106 of the National Historic Preservation Act (54 USC 306108), and their implementing regulations. When a project proponent applies for a ROW, the BLM should advise the proponent that its application might be denied and that the proponent’s financial commitments in connection with the application will not be a factor in the BLM’s evaluation process.

The pre-NEPA assessment process will be used to identify and evaluate the need for a possible land use plan (LUP) amendment.

The materials and process described in this policy are required for wind and solar energy development projects proposed on public lands in Idaho but are also available for use for other types of renewable energy projects proposed on public lands, or testing associated with such projects, where the Authorized Officer determines use would be in the public interest.

A favorable determination in the pre-NEPA assessment process does not constitute approval of the proposed project; rather, it would allow the BLM to continue processing the application and initiate its NEPA process, including public scoping and the preparation of an environmental assessment or environmental impact statement. Through the NEPA process, the BLM can complete a site-specific analysis of potential impacts from the development of the proposed project. Once completed, the NEPA analysis would serve as the basis for any future decision to either approve, approve with modifications, or deny the project.