[This alert was prepared by Steve Black, former Counselor to Interior Secretary Ken Salazar.]
On October 31, 2013, Secretary of the Interior Sally Jewell, issued her first Secretarial Order. Order No. 3330 establishes a Department-wide mitigation strategy under the Department’s Energy and Climate Change Task Force. According to a recent release by the Department, “The Order will ensure consistency and efficiency in the review and permitting of new energy and other infrastructure development projects, while also providing for the conservation, adaptation and restoration of our nation’s valuable and natural and cultural resources.” A copy of the Order is available here.
The Department of the Interior manages lands, subsurface rights and offshore areas that produce approximately one-quarter of the nation’s energy. Land management agencies in the Department of the Interior — principally the Bureau of Land Management (BLM) and the Bureau of Offshore Ocean Energy Management (BOEM) — are responsible for 245 million acres of surface rights on public lands, 700 million acres of mineral estate onshore and 1.7 billion acres offshore. Energy and other infrastructure developers who need access to public lands and need to mitigate the impacts of their projects on wildlife, ecological, cultural and scenic resources will benefit from the additional certainty and flexibility of the Department’s new mitigation policy.
The Secretary’s recent order builds upon other Department initiatives that utilize “landscape-level” approaches to development and mitigation, and it signals a Department-wide commitment to promote energy development on public lands in a more deliberate, large-scale, and comprehensive way, rather than by a piecemeal, permit-by-permit approach. Within 90 days of this Order, the Department’s Energy and Climate Change Task Force will provide Secretary Jewell with recommendations for implementing improvements to the Department’s mitigation practices and policies.
Background: Secretary Jewell’s Order is the latest step in an evolution within the Department to develop a more efficient, holistic and balanced approach to fulfilling the Department’s obligations to oversee the development of energy resources on Federal lands while safeguarding natural and cultural resources. Former Secretary Salazar’s first Secretarial Order, issued in March 2009, established the Energy and Climate Change Task Force made up of Assistant Secretaries and Bureau Directors and established, for the first time, the development of renewable energy as a priority for the Department. Order No. 3285 provided for a “coordinated efficient, and expeditious permitting process while ensuring appropriate siting and compliance with the NEPA, the Endangered Species Act (ESA), and all other applicable laws.” The best example of the Department’s landscape-level planning efforts to date is the Western Solar Energy Plan (also known as the Solar Programmatic Environmental Impact Statement, or PEIS), which was finalized in October 2012. The Solar PEIS emphasized a landscape-scale approach to identify BLM-administered lands in six Western states optimally suited for large-scale solar development, so-called solar energy zones, for which BLM would prioritize and streamline development.
Because the dual goals of conservation and responsible energy development on public lands are often in tension, the Department has also focused on strategies for regional-scale mitigation planning. In the Solar PEIS, for example, BLM identified areas of land ill-suited for large-scale utility projects and excluded them entirely from development. And, for each of the 17 solar energy zones identified in the Solar PEIS, BLM will develop regional mitigation strategies to streamline and improve the mitigation process for future projects in these areas. As proof of concept, BLM launched a regional mitigation pilot project in the Dry Lake energy zone located about 15 miles northeast of Las Vegas in August 2012. The mitigation strategy analyzes the unavoidable on-site impacts of development within a regional framework, considering regional mitigation goals and potential off-site mitigation opportunities. Regional mitigation planning, like that being piloted in the Dry Lake zone, is a priority for BLM as evidenced by BLM’s updated policy on regional mitigation. In June, BLM issued a draft manual section updating its policies and procedures for developing regional mitigation strategies, planning and implementation for all BLM and non-BLM managed lands.
The order: Secretary Jewell’s Order, like the efforts preceding it, contemplates regionally focused planning efforts and large-scale mitigation strategies designed to help facilitate and streamline review and permitting of energy infrastructure projects in areas most suitable for development, and to identify opportunities to enhance and conserve wildlife habitat at a scale that will offset the impacts of those energy projects. The Department-wide mitigation strategy will be developed by the Energy and Climate Change Task Force. As set forth in the Order, the strategy will (1) use a landscape-scale approach to identify and facilitate investment in key conservation priorities; (2) utilize early integration of mitigation considerations in project design and planning; (3) ensure the durability of mitigation measures over time; (4) ensure transparency and consistency in mitigation decisions; and (5) focus on mitigation efforts that improve the resilience of the Nation’s resources in the face of climate change.
The impact: Landscape-level planning and regional mitigation strategies should provide greater flexibility for developers considering conventional or renewable energy projects on public lands. The new mitigation strategy should provide greater clarity and certainty to project proponents, because it favors a landscape-scale approach to planning and encourages the use of mitigation banking and other tools designed to optimize resource values and to minimize environmental impacts, thereby reducing conflicts and project delays. With a regional approach to mitigation, project proponents will have more latitude to fashion a mitigation plan that fully offsets the impacts of their development and enhances the conservation values of public lands.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Ella Gannon
This article was originally published by Bingham McCutchen LLP.