1(415) 856-7010
peterweiner@paulhastings.com

March 22, 2018
VIA E-MAIL BLM_CA_DRECP@BLM.GOV & UPS
Jerome E. Perez
California State Director
Bureau of Land Management
2800 Cottage Way, Rm W-1623
Sacramento, CA 95825
Re:

Comments of the Large-Scale Solar Association and Solar Energy Industries Association on
BLM’s Notice of Intent Regarding the Desert Renewable Energy Conservation Plan

Dear Mr. Perez:
These comments are filed on behalf of the Large-scale Solar Association (LSA) and Solar Energy
Industries Association (SEIA), which thank the Bureau of Land Management (BLM) for recognizing that
the Desert Renewable Energy Conservation Plan (DRECP or Plan) has failed to facilitate development of
solar energy in areas covered by the Plan.1 The question is what to do now. The priority of the solar
industry is to have a DRECP that allows for responsible and timely development in the right places,
consistent with protection of biological and cultural resources. To the extent these problems can be fixed
administratively in the shorter term, we believe that the DRECP will begin to fulfill the renewable energy
part of its objective.
Solar energy is being rapidly deployed by states across the country as a preferred low-cost renewable
power resource. In 2017 alone utility-scale solar installations comprised 6.2 GWdc. Cumulatively, 31
GWdc of utility-scale solar photovoltaics (PV) plus 1.7 GWac of concentrating solar power (CSP) are
operating in the U.S., representing a roughly 60% share of all installed solar capacity. In 2017, new utilityscale solar investment totaled $6.8 billion2. According to The Solar Foundation, in 2016 approximately
80,000 workers spent a majority of their time working on utility-scale solar. 3
LSA and SEIA consistently advised BLM during the writing of the DRECP that the Plan was not on track
to foster solar energy development because (a) some of the Conservation and Management Actions
(CMAs) required for projects are not based on demonstrated, scientific needs and are unreasonable or
infeasible, and (b) resource conflicts or lack of transmission preclude development on much of the land
provided in the Development Focus Areas (DFAs). LSA and SEIA repeatedly urged BLM to change
problematic CMAs and to create more optionality on land available for development. Subsequent events

1

BLM’s Notice of Intent was published in the Federal Register on February 2, 2018 (83 FR 4921). Comments are
due either March 19 or 15 days after the last public scoping meeting. The last scoping meeting was held in Palm
Desert on March 7, making the due date March 22, 2018.
2
U.S. Solar Market Insight Report 2017 Year-in-Review, available at https://www.seia.org/us-solar-market-insight.
3
National Solar Jobs Census 2016, available at http://www.thesolarfoundation.org/wpcontent/uploads/2017/02/SOLARJOBSCENSUS2016.pdf.

 Jerome Perez
March 22, 2018
Page 2

have unfortunately confirmed our prediction that the DRECP may work as a Conservation Plan, but not as
a Renewable Energy Plan.4
We offer the following general comments, supplemented by specific suggestions in the materials attached
to this letter.
Conservation Management Actions
Many CMAs Are Not Science-Based and Make Development Infeasible
There are more than 700 CMAs in the DRECP, and a few hundred that are development-related. Many
are not justified on a scientific basis and are so burdensome as to make development infeasible. Notably,
they are more restrictive than the numerous “design features” that BLM adopted in its 2012 Programmatic
Solar EIS after extensive input from all interested stakeholders, and more onerous than requirements
contained in existing federal, state and local laws/regulations. Given the vast amount of new land placed
into permanent conservation by the DRECP, we expected that restrictions within DFAs would be
lessened, not made more stringent – indeed, streamlined permitting within the DFAs was promised by the
lead agencies at the start of the process. Instead, CMAs were adopted that imposed new, significantly
more restrictive requirements applicable across the board to all projects with little to no analysis of the
impact those CMAs would have on the amount of developable land within DFAs or on overall
development cost. Appended to this letter are materials describing those CMAs that either need to be
eliminated or significantly revised in order for renewable development to proceed. We emphasize here
and in those materials that the solar industry is committed to minimizing and mitigating impacts on
biological and cultural resources. But some of the CMAs are neither necessary to accomplish that
purpose nor drawn narrowly to accomplish it.
The example of an arbitrary CMA that is most used is LUPA-BIO-PLANT-2, which requires any part of a
project to be at least 0.25 miles from any individual occurrence of a non-“listed” special status plant, e.g.
Harwood’s eriastrum. Such a sweeping prohibition on development has never been required in the past
and is not supported by evidence that a distance of 0.25 miles is necessary to protect every instance of
every species of special status plant.5 Each isolated occurrence of such a plant eliminates approximately
125 acres for development (using a 0.25 mile radius exclusion). This CMA does not have any
alternatives, such as mitigation, nor does it have any language that would allow compliance “to the extent
feasible.” It does not take into account the difference between isolated occurrences created by one errant
seed and established colonies. It furthermore does not take into account the fact that the radius might
extend beyond the boundary of suitable habitat or the fact that the plant might be preserved elsewhere in
the millions of acres protected from development by the DRECP. A company knowing that special status
plants dot the desert will avoid development rather than have large areas ruled ineligible for solar arrays
after new plants appear in a single developer-funded survey.

4

BLM should review our past submissions on this subject as part of its Scoping effort.
Indeed, notwithstanding the language of LUPA-BIO-PLANT-2, which encompasses BLM Special Status and Focus
Species, the analysis in the DRECP relies on this CMA exclusively to mitigate impacts to particular “Focus Species”
in particular areas of the Plan (see, e.g., FEIS at IV.7-112, IV.7-114, IV.7-129.) The one-sentence explanations
discussing it furthermore provide no rationale for requiring a 0.25 mile buffer, noting only very generally that any
impact to the named Focus Species would be addressed by this CMA. There is no analysis, let alone a scientific
basis, for imposing the buffer requirement in areas designated for development.

5

 Jerome Perez
March 22, 2018
Page 3

Another example of an infeasible CMA is LUPA-AIR-1, which requires the project to be in compliance with
all local air quality standards during construction. “Air quality standards” have been interpreted to mean
numerical standards, excluding local agency processes for variances and other temporary exceedances.
This is an unrealistic expectation. Local air districts routinely allow temporary exceedances in order to
make development feasible, and analysis has shown that once solar projects are built, there can be an
overall reduction in downwind dust exposure due to the wind-shielding effect of PV arrays.
A few other examples of problematic CMAs are:
LUPA-BIO-16 and -17 (avian monitoring requirements during operations): imposes requirements above
and beyond those being applied at existing projects on BLM land notwithstanding no evidence of
population-level impacts after monitoring other sites for years.
LUPA-BIO-PLANT-3: Impacts to suitable habitat for Focus and BLM Special Status plant species should
be avoided to the extent feasible, and are limited to a maximum of 1% of their suitable habitat throughout
the entire LUPA Decision Area. BLM did not accurately map this habitat prior to approving the DRECP
and consequently had no idea of the value of this CMA or its potential impact on development. There is
therefore no means of determining compliance because we don’t know how much habitat there is for the
species within the LUPA Decision Area. Additionally, the 1% is arbitrary.
LUPA-BIO-13, LUPA-BIO-RIPWET-1, LUPA-BIO-SVF-6, and LUPA-CUL-11: Collectively, these CMAs
effectively require strict avoidance, with an arbitrary 200-foot buffer, of all microphyll woodland areas and
species. Prior to the DRECP, impacts to microphyll woodland were permitted as long as offsite mitigation
was secured at a 3:1 mitigation ratio. The solar industry has always been, and will continue to be,
committed to avoiding impacts to microphyll woodland where feasible. However, the CMAs as currently
written prohibit impacts to even the smallest, isolated islands of microphyll woodland that may barely
meet the definition of a microphyll woodland and have limited wildlife/hydrology value. Such a prohibition
takes thousands of acres of land within DFAs off the table for development.
Compensatory fees including, but not limited to, LUPA-BIO-COMP-2 (variable fee to be determined every
five years for impacts to Focus and Special-Status birds): The DRECP is supposed to provide costefficient and certain opportunities for development. Uncertain and unpredictable fees are not justified and
have a chilling effect on financing.
How to Fix the CMAs
The most straightforward way to address these problematic CMAs is to eliminate or amend them as
suggested in the attached materials. Ample provisions in the DRECP and other BLM authority still exists
to protect biological and cultural resources. If there is a way to amend the CMAs without reopening/amending the DRECP, that would be preferable.
We also understand there may be a method of addressing CMAs on a project-specific basis as set forth
on page 228 of the DRECP and page 63 of the Record of Decision (ROD). These provisions state that
the BLM State Director, on a project-specific basis, and in consultation with the USFWS, California
Energy Commission, and California Department of Fish and Wildlife, can authorize alternative compliance
with a specific CMA if the Director finds that the alternative will accomplish the goals and objectives of the
CMA and will result in similar or lesser impacts.

 Jerome Perez
March 22, 2018
Page 4

It has been suggested that the four agencies could address these problematic CMAs in an overarching
White Paper that more broadly interprets problematic CMAs and suggests more reasonable alternatives.
This White Paper could then be used by BLM to develop an Instruction Memorandum to field staff that in
effect eliminates the use of these CMAs without a project specific investigation.
Such an approach would be welcome, if it works, because it would eliminate the uncertainty, cost, and
delay of working through each problematic CMA for each project, and also the similarly uncertain, costly,
and untimely use of a project-specific Land Use Plan Amendment (LUPA) to address those CMAs.
Moreover, such an initiative could possibly be accomplished more quickly than an amendment to the
DRECP. We support such an effort, and believe that the other agencies may be supportive as well.
For such an approach to work, BLM and its sister agencies would have to determine that certain
reasonable/feasible alternatives to problematic CMAs would still meet the goals and objectives of the
CMA and have similar or lesser impacts. To the extent that the goals and objectives are considered as
part of a holistic scheme, this may be possible. For example, with respect to certain special status plants,
BLM would need to find that seed collection/banking or offsite mitigation (measures that were acceptable
prior to the DRECP) are alternatives that would have “similar or lesser” impacts as avoidance with a 0.25mile buffer. Similarly, BLM would need to find that offsite mitigation for impacts to certain microphyll
woodland at a 3:1 ratio (again, a mitigation measure that was acceptable prior to the DRECP) would have
a similar or lesser impact as avoidance with a 200-ft buffer. Another example is the air quality CMA set
forth above. The agencies could conclude that allowing temporary exceedances is in compliance with
local standards where local agencies allow temporary exceedances. We would be pleased to work with
the agencies on this administrative approach. However, if it proves infeasible, Plan amendments to
address this issue would be necessary through a limited amendment process. What will not work is a
project by project examination of each infeasible CMA. The delays and uncertainties associated with
such a process are what keep companies from developing in the DRECP now.
Regardless of the method used to eliminate or modify problematic CMAs, we ask that BLM begin
working with the other agencies and stakeholders now to reach agreement on which CMAs should
be changed or eliminated and what those changes should be. There is no reason to wait for a
year or two of a formal amendment process to facilitate development.
Making More Land Available for Development
In 2016 LSA and SEIA presented maps to BLM demonstrating that only a small portion of the DFAs were
developable because of resource conflicts and lack of transmission. We also noted that the 8,175 MWs
that BLM sought to make available in the DRECP area is a small fraction of the solar energy that will be
necessary to meet State and market needs. That prediction has proven accurate. However, we believe
that BLM could make more land effectively available for development without amending the land
designations in the Plan.
To make more land available for development, BLM could issue guidance for development on what the
DRECP called “unallocated” lands and that are now called General Public Lands. These lands are
theoretically available for multiple uses, including solar, but require BLM guidance to the field to allow for
applications to be filed and processed. We understand that such guidance itself would not require
amending the Plan, but simply implementing it in a manner that facilitates renewable energy
development. Even if the guidance states that solar development applications are welcome, but that

 Jerome Perez
March 22, 2018
Page 5

each project will still require a project-specific LUPA, similar to those required for early solar projects in
the CDCA, such an Instruction Memorandum would provide useful guidance for both field staff and solar
developers. We support such an administrative approach because it can be accomplished quickly and
without significant controversy.
We believe that BLM could make the General Public Lands more available for solar development through
this administrative process, without amending existing land designations in the Plan. If BLM disagrees,
LSA and SEIA, consistent with previous comments, would want BLM to adopt Alternative 2 from the draft
DRECP, with additional conditions which would preclude development that affected wildlife corridors or
other significant biological or cultural resources. BLM agreed at the time that it could choose such an
alternative without re-initiation of consultation with the USFWS, but declined to adopt that proposal.
Goals, Process, and Interaction
Going forward, whether the DRECP’s failings are addressed through administrative implementation or the
formal amendment process, we urge BLM to interact with the solar industry, as well as other
stakeholders, in an effort to come up with a solution that will accomplish the DRECP’s stated goals of
both renewable energy development and conservation. The solar industry stands ready to participate in
such a process.
Thank you very much for your consideration of these comments. Please let us know if a call or meeting
would be useful to further this discussion, especially the formation of a working group to address CMAs.
Sincerely,

Peter H. Weiner
Jill Yung
of PAUL HASTINGS LLP
PHW:jld
Attachment
cc:

Jeremiah Karuzas - (jkaruzas@blm.gov)

LEGAL_US_W # 93527053.2