EFFORTS TO STREAMLINE PERMITTING OF GEOTHERMAL PROJECTS IN THE UNITED STATES
| Jurisdiction | United States |
Katherine R. Young
National Renewable Energy Laboratory
Golden, Colorado
Copyright © 2018 by Rocky Mountain Mineral Law Foundation; Aaron Levine, Katherine R. Young
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Abstract
Geothermal permitting timelines in the United States can be a deterrent to new investment, with geothermal project development taking as long as seven to ten years. The Energy Policy Act of 2005 (EPAct 2005) in part aimed to streamline aspects of the geothermal permitting process on federally managed public lands. This article summarizes the general regulatory process for developing geothermal projects in the United States and thereafter discusses efforts proposed or undertaken by the U.S. Congress, U.S. Forest Service, U.S. Bureau of Land Management, state governments, and project developers to increase permitting efficiency.
1. Introduction
Geothermal project development timelines in the United States can be as long as seven to ten years, which can be a deterrent to new investment.1 Geothermal resource development is subject to many federal, state, and/or local laws and regulations depending on the location of the resource. The location of the geothermal resource not only determines the level of government regulation, but also whether the resource is defined as a mineral right, water right, or sui generis,2 each of which may require a different lease structure, permitting requirements, or other regulatory approvals. Further complicating the matter, the land where the geothermal resource is located may have separate surface and subsurface owners (commonly referred to as a split estate) or the surface land may be subdivided into smaller sections with different owners. As a result, the permitting requirements for each project location are different.
Both the federal government (through acts of the U.S. Congress and agency-led efforts) and state governments have already developed policies and initiatives that increase efficiency or streamline geothermal permitting. However, other policies and initiatives to further improve the geothermal permitting process have been proposed or are currently underway.
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This article discusses:
• The type of permits and regulatory approvals (including the federal and state environmental review process) that a geothermal project may require;
• Previously enacted and proposed federal legislation aimed at streamlining federal geothermal permitting;
• Efforts by the U.S. Bureau of Land Management (BLM) to improve geothermal permitting; and
• Additional strategies proposed or utilized to help streamline geothermal permitting.
2. Permits and Associated Environmental Review Requirements
Permitting and environmental review requirements depend partly on whether the surface and/or sub-surface lands are public (i.e., federal or state) or private land. This section provides a brief overview of permitting and regulatory requirements for federal, state, and private land for geothermal development.
2.1 The National Environmental Policy Act of 1969
The National Environmental Policy Act of 1969 (NEPA) is a procedural statute3 that requires federal agencies to review the potential environmental impacts of proposed actions to determine whether the actions will "significantly affect the quality of the human environment."4 The NEPA process integrates "the natural and social sciences and the environmental design arts in planning and in decisionmaking," agency cooperation, and public comment in order to achieve its goals.5 The NEPA process is applicable to all "major federal actions" significantly affecting the human environment.6 In geothermal development, a major federal action typically occurs when the project is on federal land (requiring an approval from a federal agency for leasing or permitting) or where federal funds are contributed to the project (e.g., a grant from the U.S. Department of Energy (DOE)). When there is a federal nexus, the federal agency providing the regulatory approval or funding is responsible for completing an environmental review document either in the form of an Environmental Assessment (EA) or Environmental Impact Statement (EIS). In certain circumstances, a statute or regulation may provide for a Categorical Exclusion (CX) from the requirements of NEPA, or an agency may rely on
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an existing NEPA document through a Determination of NEPA Adequacy (DNA). Table 1 provides a basic summary of these NEPA-related document types, which are explained in more detail in later sections.
Table 1: Summary of NEPA-related Environmental Review Types
| Review Type | Description | Approximate Timeframe | Example Geothermal Permit Utilizing Review Type |
| Determination of NEPA Adequacy (DNA) | Previous NEPA analysis adequately addresses the direct and cumulative impacts of the proposed activity. | 1 montha1 | Geothermal Drilling Permit at existing permitted project location with adequate environmental analysis |
| Categorical Exclusion (CX) | A "category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency ... and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. | 2 monthsa1 | Notice of Intent to Conduct Geo thermal Exploration Operations with no new surface disturbance |
| Environmental Assessment (EA) | A "concise public document for which a Federal agency is responsible that serves to ... provide sufficient evidence and analysis for determining whether to prepare an [EIS] ... [a]id an agency's compliance with [NEPA] when no [EIS] is necessary ... and [f]acilitate preparation of a statement when one is necessary," 40 C.F.R. § 1508.9. | 10 monthsa1 | Geothermal Drilling Permit for a new well |
| Environmental Impact Statement (EIS) | A detailed written environmental review statement as required by NEPA. The document includes "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposed action be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action ...." 42 U.S.C. § 4332(2)(C). | 25 monthsa1 | Plan of Utilization for a new power plant |
[1] a1 Approximate timeline for NEPA-related analyses required for geothermal permit approval on BLM managed public lands.
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2.2 Leasing and Permitting Federally Managed Public Lands
BLM manages most federal mineral (i.e., subsurface) estates (roughly 700 million acres) and, with limited exceptions, administers permit approvals even if the surface is managed by another federal agency or is privately held.8
2.2.1 Land Use Planning
For BLM-managed public lands, the process typically begins with land use planning, during which the BLM creates a Resource Management Plan (RMP) to allow for geothermal development on federal land.9 Similarly, the U.S. Forest Service (USFS) develops Forest Plans to allow for geothermal development on National Forest System lands. Development of, or an amendment to, an RMP or Forest Plan requires compliance with NEPA.10 NEPA for RMPs or Forest Plans may take the form of an EA or an EIS depending on the scope.11
2.2.2 Geothermal Leasing
After land use planning is complete, but prior to leasing the parcel for development, the BLM conducts a leasing analysis either individually for the parcel or cumulatively for multiple parcels. The leasing analysis usually occurs after an entity interested in the parcel nominates the parcel for lease by submitting a lease nomination application with a description of the land to the BLM. The BLM, however, can also place land up for lease
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on its own initiative.12 The leasing analysis, which may include a second NEPA review (in addition to the NEPA review conducted for the RMP), focuses on whether the land is available for leasing,13 what type of lease stipulations are required, and, generally, what environmental, cultural, and other resources may be impacted on the lease parcel by allowing geothermal development.14 After completing the leasing NEPA review, the BLM is allowed to accept bids on the parcel at a competitive public auction.15 If the parcel is not bid on at public auction, the land becomes available for noncompetitive leasing for a two-year period starting the day after the parcel did not receive bids at the public auction.16
On National Forest System lands, the geothermal lease nomination application is sent to the BLM, but then forwarded to the USFS for review.17 The USFS conducts analysis to determine whether the lease acreage is open or closed based on information within agency land use plans (i.e., Forest Plans) and what additional stipulations would be necessary to meet the goals and objectives of the individual Forest Plan, before providing the appropriate BLM State Director with a consent decision and lease stipulations if the consent decision favors leasing.18 The USFS uses the NEPA process in reviewing and making consent decisions.19 The BLM can add additional terms, conditions, or stipulations, but cannot lease National Forest System lands without the consent of the USFS.20
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2.2.3 Geothermal Exploration Permits
A developer may conduct exploration activities on unleased lands via a Notice of Intent to Conduct Geothermal Resource Exploration Operations (NOI) on both BLM21 and National Forest System land.22 However, due to the competitive bidding process, developers often choose to wait until after the BLM issues a lease to the developer...
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