Implementation of Section 50265 in the Inflation Reduction Act for Expressions of Interest for Oil and Gas Lease Sales

As provided in section 50265 of the IRA, the BLM may not issue a right-of-way for wind or solar energy development on Federal land unless it has (1) held an onshore oil and gas lease sale during the past 120 days and (2) offered the lesser of a “sum total” of either 2,000,000 acres or 50 percent of the acreage for which EOIs have been submitted for lease sales during the previous one-year period.

Timelines for accepting EOIs

For certain instances in issuing a wind or solar energy right-of-way, the BLM will calculate whether it has offered for lease 50 percent of the quantity of acreage for which EOIs were submitted in the last one-year period, as directed in IRA Section 50265.

Because of the volume and/or complexity of EOIs that the BLM typically receives, it generally cannot process continuous and accurate calculations of the EOI acreage for purposes of complying with IRA Section 50265.[1]

Thus, to ensure accurate and orderly calculations to comply with the IRA, each BLM state office will accept EOIs as usual, but will hold the EOIs received in the last month of each quarter to be counted and processed with those received in the first month of the following quarter. During the final month of each quarter, the BLM will evaluate EOIs received in that and (if necessary) prior quarters to ensure the EOIs meet all applicable requirements (e.g., to ensure that the submissions are “expressions of interest” within the meaning of the Mineral Leasing Act) and tabulate the associated acreage for purposes of IRA Section 50265.

A Expression of Interest Timeline Calendar showing the months during which EOIs will be held until the following month is included as Attachment 1 to this IM. As reflected in the attachment, the BLM will count EOIs received in the third month of each quarter among those received in the first month of the following quarter.

Offered/EOI Acreage Formula

For purposes of Section 50265, if the BLM has not offered 2,000,000 acres for sale in the past one-year period, the BLM will verify that it has offered for lease at least one acre for every two acres of EOIs that were submitted for lease sales during the prior one-year period, although the acres offered for lease do not need to be the same acres that were nominated. In other words, in making this verification, the BLM should make sure that:

Number of acres offered in 1 year period≥Numbers of EOI acres submitted in 1 year period*50%

The one-year period refers to the year before the wind or solar energy right-of-way is issued. For example, if a wind right-of-way is to be issued on March 28, 2022, then the BLM will evaluate EOIs submitted between March 28, 2021, and March 27, 2022. The BLM will calculate the EOI formula on a national basis (i.e., based on all acreage offered for sale in the one-year period and the acreage included in the submitted EOIs across all BLM jurisdictions).

The BLM will calculate the acreage offered by summing the acreage of leases offered for sale over the one-year period. Because the IRA does not limit the BLM to offering only the acreage that was included in EOIs, the BLM will include any acreage offered at a lease sale in the one-year period.

EOIs transmitted to the National Fluids Lease Sale System (NFLSS) will be evaluated consistent with current practice. The BLM will calculate the EOI acreage submitted by removing the acreage in submitted EOIs that are for lands that cannot be offered because they are in one of the following statuses:

1. Deferred – Deferred acreage is acreage that is affected by a court order that prevents the BLM from offering the acreage in a lease sale.
2. Duplicate – Duplicate acreage is acreage that is duplicative of acreage already nominated for an upcoming lease sale.
3. Leased – Leased acreage is acreage that is currently within an authorized lease.
4. Unable to Process or Unavailable – Acreage that is either unable to be processed by the BLM or not subject to disposition for a specific reason will be removed, which includes, but is not limited to:
   1. The acreage is covered by the Act of May 21, 1930, 30 U.S.C. 301-306 (i.e., the BLM must lease the lands under 43 CFR 3109)
   2. BLM needs additional information about the acreage
   3. The submitter did not pay all necessary money (i.e., missing filing fee)
   4. The acreage is closed to leasing or not open to leasing
   5. The FWS requires proof of drainage
   6. The EOI is missing Surface Owner Information
   7. The acreage contains no federal mineral rights
   8. Surface Management Agency (SMA) consent was not provided
   9. SMA consent was withdrawn
   10. The acreage was conveyed to a State as part of a land exchange
   11. The acreage is under BIA jurisdiction
   12. The locality information is unclear
   13. The acreage is within a Wilderness Study Area
   14. The acreage is within an incorporated city, town, or village
   15. The acreage is within a National Conservation Area
   16. The acreage is within a National Wildlife Refuge
5. Withdrawn – Acreage in an EOI, which has been withdrawn by the person who submitted the EOI.

The BLM will calculate this acreage and review the formula on the day the BLM plans to issue a wind or solar energy right-of-way. If the BLM has not offered 50 percent or more acres of EOIs submitted in the past one-year period, the BLM will not issue the right-of-way until the BLM has offered a sufficient number of acres to satisfy the requirements of the IRA (unless 2,000,000 acres have been offered in the prior one-year period).

Finally, the BLM will create and periodically update a report to track the acreage of submitted EOIs. The BLM will place the report on the NFLSS Dashboard from the National-Apps Reporting System. The BLM will also create a report to complete the above review as needed. Please reach out to the contacts in this IM for assistance.

Application

This IM governs BLM procedure and organization and is not a substantive rule, regulation, or other legally binding instrument, and the recommendations it contains may not apply to a particular situation based upon the individual facts and circumstances. Nothing in this IM is intended to modify or amend any Federal laws or regulations, nor create any rights or cause of action or trust obligation that any person or party may enforce through litigation or otherwise against the United States Government or any of its employees or officers. This IM is not legally enforceable. To the extent that there is any inconsistency between the provisions of this IM and any Federal regulations or laws, the regulations or laws will control.