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1
Permitting Geothermal
Exploration and Development
Projects on Public and Tribal
Lands
Presented by: Alan Waltner, Law Of...
Overview
• Goal - Making Sense of a Complex Regulatory System
• Geothermal Developments and Their Typical Impacts
• Key Re...
Components of a Geothermal Project
• Drilling rigs
• Production facilities
• Generation facilities
• Pipelines
• Transmiss...
Stages of the Development Process
• Leasing
• Exploration
• Development
• Production
• Abandonment/closure/restoration
• E...
The Geysers
Salton Sea Power Project (Proposed Unit 6)
Comparison – Proposed Ivanpah Solar
Power Project
Comparison – Proposed Ivanpah Solar
Power Project
Typical Environmental Impacts of a
Geothermal Development
• Air emissions (construction equipment emissions, fugitive dust...
Key Recent Developments
• California Executive Order S-14-08
• CEC/DFG Memorandum of Understanding
(MOU)
• State/Federal M...
California Executive Order S-14-08
• Issued November 17, 2008
• Establishes a 33% Renewable Portfolio Standard
(RPS) by 20...
CEC/DFG Memorandum of Understanding
• Also adopted on November 17, 2008
• Does not waive or modify any environmental laws
...
State/Federal Memorandum of
Understanding
• Also adopted on November 17, 2008
• Does not waive or modify any environmental...
Benefits and Limitations of Preferential
Treatment
• Preferential treatment can get your project to the top of
the “to do”...
BLM Programmatic EIS
• Adopted in October 2008
• A massive undertaking, spanning over 1000 pages
• Addresses priority deve...
Benefits of Programmatic Documents
• Provide a template for project-level
environmental reviews, including analytical
meth...
Limitations of Programmatic Documents
• Judicial challenges generally can be brought any
time within 6 years of adoption (...
FEDERAL, STATE AND
LOCAL REGULATIONS
The Importance of Location
• Surface owner (USFWS, BLM, DOD, state, or
tribe) must approve development
• Applicable regula...
Key Federal Regulatory Programs
• BLM Regulations
• National Environmental Policy Act (NEPA)
• Endangered Species Act (ESA...
BLM Regulations
• Substantially modified in 2007 to incorporate
provisions of the 2005 Energy Policy Act
• Include general...
BLM Regulations (continued)
• Prohibit leasing in –
• National Parks, National Recreation Areas, and Indian
trust lands ou...
National Environmental Policy Act
(NEPA)
• Requires preparation of appropriate
environmental documents in connection with
...
Federal Endangered Species Act (ESA)
• ESA program is oriented around the listing of species and
the designation of critic...
Sage
Grouse
Habitat
Alternate ESA Permit Pathways
• The ESA offers two pathways for addressing the
prohibition against “take” of a species und...
 Consultation triggered by action
authorized, funded, or carried out by the
federal agency
 Applies to any non-federal p...
Standards Under ESA Section 7
• USFWS evaluates whether the action, together with
cumulative effects, is likely to “jeopar...
•Only applies if no federal “nexus”
•“Taking” may be allowed by permit if it is
“incidental to, and not the purpose of” an...
Clean Water Act Section 404
• Prohibits the filling of wetlands and other waters
without a permit
• Administered by the US...
Section 404 Permits
• Nationwide Permits (NWP)
• Issued in the form of regulations, covering
particular categories of acti...
Clean Water Act Section 402
• Triggered by “point source” discharge to “navigable”
waters or tributaries
• Generally admin...
Other Potentially Applicable Federal
Programs
• Migratory Bird Treaty Act
• Fish and Wildlife Coordination Act
• National ...
Potentially Applicable State Regulatory
Programs
• Programs Generally Applicable to Federal Lands
• Water quality certific...
Section 401 Water Quality Certification
• Part of the Federal permitting process
• Applies to “any applicant for a Federal...
National Historic Preservation Act (NHPA)
Section 106
• Section 106 requires consultation with State
Historic Preservation...
Other State Processes Applicable on Federal
Lands
• California Energy Commission (CEC) review
• Only applies to projects 5...
State Regulatory Programs Generally
Applicable Only to State and Private Lands
• California Environmental Quality Act (CEQ...
Potentially Applicable Local Regulatory
Programs
• General Plan
• Zoning
• Conditional use permit
• Grading permit
• Encro...
Special Considerations on BLM Lands
• Most resources are located on BLM lands
• BLM applies standards of Federal Land Poli...
Special Considerations on Forest Service
Lands
• Authorization from both Forest Service and BLM
required
• Forest Service ...
Special Considerations on Tribal Lands
• Extremely complicated jurisdictional issues,
particularly regarding the applicati...
Tribal Considerations not Limited to
Reservations
• Impacts on:
• Sacred sites
• Traditional cultural properties or landsc...
Special Considerations on State Lands (in
California)
• Division of Oil, Gas and Geothermal Resources
(DOGGR) regulates we...
KEY RECOMMENDATIONS FOR
MAKING THE PROCESS WORK
Key Strategies for Structuring the
Permit Process
• EIS/EIR prepared first as a core environmental document
• Provides a d...
Key Strategies for Structuring the Permit
Process (continued)
• Integrate environmental planning into the initial
stages o...
Discussion/Closing Remarks
Permitting Geothermal Exploration And Development Projects On Public And Tribal Lands   Alan Waltner Powerpoint Presentati...
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Permitting Geothermal Exploration And Development Projects On Public And Tribal Lands Alan Waltner Powerpoint Presentation March 2009

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

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Permitting Geothermal Exploration And Development Projects On Public And Tribal Lands Alan Waltner Powerpoint Presentation March 2009

  1. 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. 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
  3. 3. 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
  4. 4. Stages of the Development Process • Leasing • Exploration • Development • Production • Abandonment/closure/restoration • Each can be a trigger for regulatory requirements
  5. 5. The Geysers
  6. 6. Salton Sea Power Project (Proposed Unit 6)
  7. 7. Comparison – Proposed Ivanpah Solar Power Project
  8. 8. Comparison – Proposed Ivanpah Solar Power Project
  9. 9. 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
  10. 10. Key Recent Developments • California Executive Order S-14-08 • CEC/DFG Memorandum of Understanding (MOU) • State/Federal Memorandum of Understanding • BLM Programmatic EIS
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15. 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
  16. 16. 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
  17. 17. 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
  18. 18. FEDERAL, STATE AND LOCAL REGULATIONS
  19. 19. 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
  20. 20. 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)
  21. 21. 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
  22. 22. 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
  23. 23. 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
  24. 24. 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
  25. 25. Sage Grouse Habitat
  26. 26. 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)
  27. 27.  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
  28. 28. 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”
  29. 29. •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
  30. 30. 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
  31. 31. 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
  32. 32. 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
  33. 33. 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.
  34. 34. 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
  35. 35. 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
  36. 36. 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
  37. 37. 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
  38. 38. 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
  39. 39. 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)
  40. 40. 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
  41. 41. 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
  42. 42. 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
  43. 43. 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
  44. 44. 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
  45. 45. KEY RECOMMENDATIONS FOR MAKING THE PROCESS WORK
  46. 46. 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)
  47. 47. 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
  48. 48. Discussion/Closing Remarks

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