Wind Energy Law Alert: BLM and State of Oregon Complete Unprecedented MOU on the Siting and Environmental Review of Wind Energy Projects
2/18/2009

As the availability of private land in Oregon suitable for siting wind energy projects diminishes, wind energy developers are increasingly looking to federal land for appropriate project sites. Development on federal lands, however, can require compliance with a daunting collection of federal regulations that only add to the already complex and oftentimes onerous requirements imposed at the state level. In recognition of the complexity of these layers of regulatory review, the Bureau of Land Management ("BLM") and the Oregon Department of Energy ("ODOE") have signed an unprecedented Memorandum of Understanding ("MOU") that seeks to streamline the agencies' siting and permitting processes and facilitate cooperation among federal and state agencies. Executed last week, the MOU delineates the roles, responsibilities, and procedures that BLM and ODOE must follow in carrying out a joint environmental review of commercial wind energy projects.

ODOE's and BLM's Authorities

In Oregon, developers of large wind energy facilities (average generating capacity of 105 MW or greater) must submit applications to the Energy Facility Siting Council ("EFSC"), a seven-member citizen board appointed by the governor. ODOE serves as EFSC's staff. In order to provide local input on such projects, EFSC also designates an advisory board within the county or other governing body where a facility is proposed. Oregon law requires the state to review applications for energy facility site certifications and to review wind energy applications in a manner that is consistent with, but not duplicative of, federal agency review.

BLM is responsible for managing more than 15 million acres of public land in Oregon. Pursuant to federal law, BLM is charged with processing requests for rights-of-way grants and associated transmission lines and other appurtenant facilities that are integral to project development ("ROWs"). In processing ROW applications, BLM must comply with numerous federal laws, the most comprehensive of which is the National Environmental Policy Act ("NEPA").¹ NEPA essentially requires that federal agencies responsible for reviewing projects within their jurisdictions evaluate the environmental impacts associated with the construction, operation and maintenance of such projects.

A Focus on Collaboration

Given the broad scope of NEPA, the MOU focuses primarily on collaboration between BLM and ODOE in processing EFSC applications and NEPA documentation. Compliance with NEPA requires relatively detailed technical analysis supported by extensive documentation. The same is generally true of EFSC applications. By collaborating on the preparation of NEPA and EFSC documents pursuant to the MOU, BLM and the State of Oregon are optimistic that they will be able to conduct the environmental review more efficiently and provide project applicants with greater clarity on permitting requirements.

On-the-Ground Implications

This MOU is particularly important because of the increasingly limited availability of private land in Oregon for wind energy development and the potentially significant amounts of federal land suitable for such projects. Providing a more effective means of permitting projects on public lands presents a real opportunity for wind energy project developers to expand their presence and investment in renewable energy in Oregon. While development on federal lands cannot be taken lightly given the complex web of applicable federal regulations, with careful site selection and planning, and thanks to the efforts of agencies like BLM and ODOE, there is great potential for increased development of wind energy projects on federal lands.

The MOU is considered to be a model for state and federal coordination throughout the country. Stoel Rives facilitated the process that led to the completion of the MOU.

The MOU and related press releases are available at the Bureau of Land Management website.

If you have any questions, please contact:

Tim McMahan at (503) 294-9517 or tlmcmahan@stoel.com
Aaron Courtney at (503) 294-9411 or accourtney@stoel.com
Erin Anderson at (503) 294-9546 or elanderson@stoel.com

For other BLM and public lands questions, contact:

Seattle
Michael O'Connell at (206) 386-7692 or moconnell@stoel.com

Boise
Krista McIntyre at (208) 387-4239 or kkmcintyre@stoel.com

Salt Lake City
Julia Pettit at (801) 578-6958 or jrpettit@stoel.com
John Kirkham at (801) 578-6956 or jskirkham@stoel.com