Conference presentation on regulatory compliance for geothermal projects on public and tribal lands

1. 1
Permitting Geothermal
Exploration and Development
Projects on Public and Tribal
Lands
Presented by: Alan Waltner, Law Offices of
Alan Waltner
www.waltnerlaw.com
Geothermal Energy in the West, March 26 & 27, 2009
Law Seminars International

2. Overview
• Goal - Making Sense of a Complex Regulatory System
• Geothermal Developments and Their Typical Impacts
• Key Recent Developments (EO, MOUs and Program EIS)
• Preferential Treatment and Programmatic Documents –
Benefits and Limitations
• Overview of Federal, State, and Local Regulatory Programs
that may Apply to Geothermal Developments
• Special Considerations on Federal, State and Tribal Lands
• Ways to Increase the Likelihood of Success
• Discussion/Closing Remarks

4. Components of a Geothermal Project
• Drilling rigs
• Production facilities
• Generation facilities
• Pipelines
• Transmission lines
• Roads
• Buildings
• Direct use facilities
• Generally relatively small in scale and impact compared
to other renewable energy projects such as wind and solar
• All components need to be considered

5. Stages of the Development Process
• Leasing
• Exploration
• Development
• Production
• Abandonment/closure/restoration
• Each can be a trigger for regulatory requirements

6. The Geysers

7. Salton Sea Power Project (Proposed Unit 6)

8. Comparison – Proposed Ivanpah Solar
Power Project

9. Comparison – Proposed Ivanpah Solar
Power Project

10. Typical Environmental Impacts of a
Geothermal Development
• Air emissions (construction equipment emissions, fugitive dust,
hydrogen sulfide, carbon dioxide)
• Visual impacts (facilities, steam plumes)
• Habitat disturbance (animals, plants, wetlands, old growth
forests)
• Cultural/historical resources impacts
• Water use
• Wastewater discharges
• Hazardous materials and waste
• Noise
• Land use compatibility (i.e. recreational uses)
• Avoiding or reducing impacts will reduce the regulatory
hurdles

11. Key Recent Developments
• California Executive Order S-14-08
• CEC/DFG Memorandum of Understanding
(MOU)
• State/Federal Memorandum of Understanding
• BLM Programmatic EIS

12. California Executive Order S-14-08
• Issued November 17, 2008
• Establishes a 33% Renewable Portfolio Standard
(RPS) by 2020
• SB 107 established a 20% RPS by 2010
• Directs state agencies to “take all appropriate
actions” to implement this target
• Expedites permitting for all renewable energy
projects
• Adopts various actions, goals and targets of the
CEC/DFG MOU

13. CEC/DFG Memorandum of Understanding
• Also adopted on November 17, 2008
• Does not waive or modify any environmental laws
• Formalizes the Renewable Energy Action Team (REAT)
• Directs creation of a “one-stop” process for permitting
renewable energy projects
• Requires the identification of priority areas for
development by February 1, 2009, where permitting times
will be reduced by 50%
• Directs the initiation of a Natural Community
Conservation Plan (NCCP), to be known as the Desert
Renewable Energy Conservation Plan (DRECP)
• Specifies the establishment of long term California
Endangered Species Act assurances by June 1, 2012

14. State/Federal Memorandum of
Understanding
• Also adopted on November 17, 2008
• Does not waive or modify any environmental laws
• Includes the CEC, DFG, Bureau of Land Management
(BLM) and US Fish and Wildlife Service (USFWS)
• Establishes a Renewable Energy Permit Team (REPT) to
coordinate and expedite project permitting
• Commits the federal agencies to developing a joint desert
energy conservation plan (DECP)
• Directs establishment of Best Management Practices
(BMPs) and other interim guidelines

15. Benefits and Limitations of Preferential
Treatment
• Preferential treatment can get your project to the top of
the “to do” pile
• Access to agency staff is enhanced
• Access to agency management is increased if problems
arise
• State MOU principally addresses state endangered
species, which generally are not a key hurdle
• Neither MOU waives or modifies substantive
environmental laws
• Team building with agency staff is essential

16. BLM Programmatic EIS
• Adopted in October 2008
• A massive undertaking, spanning over 1000 pages
• Addresses priority development areas in 11 western states,
including California and Nevada
• Includes more detailed analysis of certain near-term
projects
• Will streamline future NEPA analysis
• Provides a template for the analysis of impacts
• Includes generic best management practices that
provide a menu of future mitigation options
• Addresses cumulative impacts

17. Benefits of Programmatic Documents
• Provide a template for project-level
environmental reviews, including analytical
methods, mitigation measures, and impact
conclusions
• May be adequate for project-level cumulative
impact analyses
• May reduce the scope of issues in subsequent
legal challenges
• Provides for public participation at an early stage
• May be required by NEPA in any event

18. Limitations of Programmatic Documents
• Judicial challenges generally can be brought any
time within 6 years of adoption (federal
documents only, such as EA, EIS, or BO)
• Reliance on a subsequently invalidated document
may undermine project-level environmental
analyses
• Given the typical lack of project-specific details,
the analysis in the programmatic document may
be too general to support project-level approvals

19. FEDERAL, STATE AND
LOCAL REGULATIONS

20. The Importance of Location
• Surface owner (USFWS, BLM, DOD, state, or
tribe) must approve development
• Applicable regulations will depend on whether
land is federally, state or tribally owned
• Complex issues of sovereignty and waiver need to
be evaluated
• Some lands are off-limits to any development
• All aspects of the project (including offsite
components such as transmission) need to be
evaluated

21. Key Federal Regulatory Programs
• BLM Regulations
• National Environmental Policy Act (NEPA)
• Endangered Species Act (ESA)
• Clean Water Act – Section 404 (CWA/404)
• Clean Water Act – Section 402 (CWA/402)
• National Historic Preservation Act (Section 106)

22. BLM Regulations
• Substantially modified in 2007 to incorporate
provisions of the 2005 Energy Policy Act
• Include general requirements to –
• Protect the quality of waters, air, and other natural
resources, including wildlife, and natural history
• Prevent “unnecessary or undue degradation” of
land
• Protect cultural, scenic, and recreational resources
• Accommodate other land uses
• Minimize noise

23. BLM Regulations (continued)
• Prohibit leasing in –
• National Parks, National Recreation Areas, and Indian
trust lands outside of Indian Reservations
• Wilderness areas or wilderness study areas, except
those study areas established by Congress where
leasing is expressly allowed
• Limit effects on any “significant thermal feature” in listed
National Parks
• May require collection of environmental data for up to 1
year before operations
• Failure to comply with environmental requirements can be
a basis for lease revocation

24. National Environmental Policy Act
(NEPA)
• Requires preparation of appropriate
environmental documents in connection with
“major federal actions”
• Administered by federal lead agency
• Generally requires preparation of an
Environmental Impact Statement (EIS) or
Environmental Assessment (EA)
• Project NEPA documents may now be
streamlined as a result of BLM’s 2008
Programmatic EIS

25. Federal Endangered Species Act (ESA)
• ESA program is oriented around the listing of species and
the designation of critical habitat
• Administered by USFWS for most terrestrial species
• Prohibits the unpermitted “take” of listed species, defined
to include the destruction or modification of habitat where
it directly leads to death or injury of listed wildlife
• Significant penalties for illegal take and potential citizen
suits
• Take can be authorized either through Section 10 permits,
or Section 7 consultation

26. Sage
Grouse
Habitat

27. Alternate ESA Permit Pathways
• The ESA offers two pathways for addressing the
prohibition against “take” of a species under
Section 9
• Section 7 -- Consultation with USFWS
• Section 10 -- Incidental take permit (ITP) and
habitat conservation plan (HCP)

28.  Consultation triggered by action
authorized, funded, or carried out by the
federal agency
 Applies to any non-federal project which
has a “federal nexus” – e.g., federal
approval (BLM lease, or Corps 404 permit)
or federal funding
 Can be “formal” or “informal” depending
upon the degree of impact
 Can be done on a programmatic basis
Section 7 Consultation

29. Standards Under ESA Section 7
• USFWS evaluates whether the action, together with
cumulative effects, is likely to “jeopardize” the
continued existence of the species
• If USFWS finds potential “jeopardy” it must identify
reasonable and prudent alternatives
• If USFWS finds no jeopardy, must identify measures
to minimize impacts
 Federal agencies also must ensure that their actions
are “not likely to result in the destruction, or adverse
modification” of any formally designated “critical
habitat”

30. •Only applies if no federal “nexus”
•“Taking” may be allowed by permit if it is
“incidental to, and not the purpose of” an otherwise
lawful activity
•Requires a Habitat Conservation Plan (HCP) that:
• Identifies impact minimization measures
• Proposes species conservation measures
• Guarantees funding
•More complex than Section 7 consultation
Section 10 Permits and Habitat
Conservation Plans

31. Clean Water Act Section 404
• Prohibits the filling of wetlands and other waters
without a permit
• Administered by the US Army Corps of
Engineers
• Proponents should avoid wetlands and other
“waters” where practicable

32. Section 404 Permits
• Nationwide Permits (NWP)
• Issued in the form of regulations, covering
particular categories of activities (e.g., surveys,
utility lines) with minor impacts
• Individual Permits
• Site specific and project specific
• Must demonstrate that project represents the
“least environmentally damaging practicable
alternative” (LEDPA) by analyzing alternative
sites and configurations for the project

33. Clean Water Act Section 402
• Triggered by “point source” discharge to “navigable”
waters or tributaries
• Generally administered by the states
• NPDES permit required
• Also applies to storm water discharges from
construction and industrial activities
• State has issued general permits for most activities
• Simple notice of intent process
• Stormwater pollution prevention plan and best
management practices required

34. Other Potentially Applicable Federal
Programs
• Migratory Bird Treaty Act
• Fish and Wildlife Coordination Act
• National Wilderness Preservation Act
• Wild and Scenic Rivers Act
• Safe Drinking Water Act
• Resource Conservation and Recovery Act
• Occupational Safety and Health Act
• Location-specific statutes
• Budget riders, etc.

35. Potentially Applicable State Regulatory
Programs
• Programs Generally Applicable to Federal Lands
• Water quality certifications under CWA Section
401
• Historic resource reviews (Section 106)
• CEC review of projects over 50MW
• CEQA functional equivalence approach
• Air permits (NSR, PSD and Title V)
• Wastewater discharge permits Under CWA
Section 402, including storm water construction
permits

36. Section 401 Water Quality Certification
• Part of the Federal permitting process
• Applies to “any applicant for a Federal license or
permit . . . to conduct any activity . . . which may
result in any discharge into the navigable waters
• Requires Regional Water Quality Control Board
certification as a precondition to federal permit
issuance
• Nominally limited to water quality issues
• Regional Boards are expanding the range of
issues that they are addressing
• Creates incentive to avoid water quality impacts

37. National Historic Preservation Act (NHPA)
Section 106
• Section 106 requires consultation with State
Historic Preservation Officer for projects
affecting historic resources
• BLM has development a National Protocol
Agreement (PA) that governs how BLM meets
these responsibilities in California and portions of
Nevada
• Streamlines the 106 process by eliminating
case-by-case consultation on undertakings that
culminate in “no historic properties affected”
and “no adverse effect” findings

38. Other State Processes Applicable on Federal
Lands
• California Energy Commission (CEC) review
• Only applies to projects 50 mw or greater
• Process is CEQA functional equivalent
• Can help support the federal process
• Air permits
• Regulatory hurdles vary considerably by
location
• Generic state equipment standards apply
• Wastewater discharge and storm water permits

39. State Regulatory Programs Generally
Applicable Only to State and Private Lands
• California Environmental Quality Act (CEQA)
• California Endangered Species Act (CESA)
• Streambed Alteration Agreements (1602)
• Need to look at all components of the project,
both on-site and off-site

40. Potentially Applicable Local Regulatory
Programs
• General Plan
• Zoning
• Conditional use permit
• Grading permit
• Encroachment permit
• Generally not applicable to projects on federal/tribal lands
• Generally not applicable to state projects on state lands
• Apply to projects on private lands (including offsite
components such as transmission lines)

41. Special Considerations on BLM Lands
• Most resources are located on BLM lands
• BLM applies standards of Federal Land Policy
Management Act (FLPMA)
• Multiple use, sustained yield
• Applicable management plans need to be
considered
• California Desert Conservation Area Plan
• BLM has also established detailed leasing
regulations

42. Special Considerations on Forest Service
Lands
• Authorization from both Forest Service and BLM
required
• Forest Service is responsible for pre-leasing
environmental review
• Project must be consistent with applicable forest
management plan
• BLM is responsible for operations approvals
• Forest Service continues to be responsible for
regulating roads and transmission lines

43. Special Considerations on Tribal Lands
• Extremely complicated jurisdictional issues,
particularly regarding the application of state and
local requirements
• Some tribes have a sophisticated regulatory
program, others have little or none
• Bureau of Indian Affairs generally approves
leases and is the federal lead agency under NEPA
• Would be “inventing the wheel” since there has
been minimal activity on Tribal lands thus far
• Tribes can obtain “treatment as a state” status
under certain federal laws, including the CWA

44. Tribal Considerations not Limited to
Reservations
• Impacts on:
• Sacred sites
• Traditional cultural properties or landscapes
• Past or present hunting, fishing, or gathering
areas
• Changes in hydrology or ecological conditions of
springs, seeps, wetlands and streams that could be
considered sacred or have historic use
associations

45. Special Considerations on State Lands (in
California)
• Division of Oil, Gas and Geothermal Resources
(DOGGR) regulates wells
• Generally DOGGR is the lead agency for
CEQA purposes at the exploration stage (on
both state and private lands)
• Review includes evaluation of a drilling plan
• State Lands Commission (SLC) is responsible for
issuing leases on behalf of the State as owner of
the resource
• State agency approvals must comply with CEQA

46. KEY RECOMMENDATIONS FOR
MAKING THE PROCESS WORK

47. Key Strategies for Structuring the
Permit Process
• EIS/EIR prepared first as a core environmental document
• Provides a definitive project description
• Establishes a mitigation template
• Provides comprehensive information on biological
resources, including wetlands
• Involves the agencies and the public
• CEC staff evaluation of projects over 50MW is a
“functional equivalent” that can serve the same role
(example, solar MOU)

48. Key Strategies for Structuring the Permit
Process (continued)
• Integrate environmental planning into the initial
stages of project planning
• Prepare a detailed regulatory analysis
• Consider environmental constraints and avoid
them where possible
• Involve the agencies early on
• Coordinate environmental reviews
• The playing field is constantly changing
• All calling for creative, adaptive approaches

49. Discussion/Closing Remarks