The Desert Renewable Energy Conservation Plan: an Impossible Task?

• Publication year: 2015
• Author: by Arielle Harris and David Cameron

The Desert Renewable Energy Conservation Plan: An Impossible Task?

by Arielle Harris^* and David Cameron^**

I. INTRODUCTION

First proposed in 2008, the Desert Renewable Energy Conservation Plan (DRECP or Plan)¹ is an ambitious effort to designate appropriate locations for the development of solar, wind, and geothermal energy within the Mojave Desert and Colorado/Sonoran Desert regions in California. Over the last seven years, however, the Plan's likelihood of success has declined dramatically and there are signs the DRECP, like other recent large-scale plans, may be collapsing under its own weight. Controversy has been so heated that the state and federal agencies preparing the Plan decided this past Spring to segregate the Plan's three fundamental components and utilize a "phased approach," with the Bureau of Land Management's (BLM) land use planning amendments prioritized first.²

In theory, the Plan is extremely popular. A recent opinion poll found that while only one in four surveyed knew about the Plan, 67 percent of those familiar with the DRECP supported it.³ Of those who had never heard of the Plan, 74 percent supported it after hearing its goals.⁴ A review of the 12,000 comments submitted on the draft Plan tells a much different story. Indeed, the Plan has been the subject of widespread criticism from renewable energy developers, environmental groups, local communities, and every county located within the Plan area. Perhaps the most common criticisms are that the Plan is overly complex and confusing, and that it fails to articulate how permit streamlining will ultimately be achieved.

The Plan, which has a 25-year term, would cover over 22.5 million acres within seven different counties: Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino, and San Diego.⁵ The four agencies preparing the DRECP include BLM, the California Energy Commission (CEC), the California Department of Fish and Wildlife (CDFW), and the U.S. Fish and Wildlife Service (the "Service"). These agencies form the Renewable Energy Action Team (REAT).

The Plan includes extremely lofty goals, including:

• Based on a planning goal of 20,000 megawatt (MW) by 2040, "identify the most appropriate locations within the Plan Area for the development of utility-scale renewable energy projects, taking into account potential impacts to threatened and endangered species and sensitive natural communities."⁶
• Provide a framework for a permitting process through which "proposed renewable energy projects within the Plan Area may obtain regulatory authorizations" in a "more efficient and coordinated" manner that "results in greater conservation, than a project-by-project, species-by-species review."⁷
• "Locate renewable energy development" (1) "on lands with suitable renewable energy resources," (2) "in proximity to existing and planned transmission," and (3) "on disturbed lands in areas with low biological conflict, to the extent feasible."⁸
• "Contribute to the long-term conservation and management of Covered Species and natural communities within the Plan Area."⁹

Wind and solar energy developers claim that the DRECP may frustrate, instead of promote, state and federal renewable energy goals. Environmental groups claim that the Plan will have a negative impact on desert species and that the environmental effects of the Plan will not be adequately mitigated. Indeed, even members of the Stakeholder Committee¹⁰ have stated they cannot support this version of the DRECP.¹¹ Local entities are concerned that decisions made under the DRECP would foreclose local determinations regarding land use, and that the Plan assumes a large proportion of renewable development will occur outside of federal public lands—a bold assumption given competing objectives and considerations in those non-federal areas.

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Some of the most important questions now concern how the REAT agencies will implement the DRECP under the newly announced "phased approach." On March 10, 2015, only a few weeks after the close of the public comment period on the draft Plan, the REAT agencies announced a new phased approach to the three components of the draft Plan: 1) BLM's Land Use Plan Amendment (LUPA), 2) federal General Conservation Plan (GCP), and 3) state Natural Community Conservation Plan (NCCP).¹² Under this phased approach, the agencies would first focus on BLM's LUPA, which would include completion of an Environmental Impact Statement (EIS) tailored solely to the LUPA. Phase II of the Plan—if ever implemented—would include the NCCP and/or the GCP. According to CEC Commissioner Karen Douglas, "[u]sing a phased approach to the DRECP allows us to build on county priorities and address local needs in the planning process."¹³ It is unclear how removing non-federal areas from the planning process will address county priorities. Indeed, this phased approach may increase conflicts among competing planning and policy priorities rather than resolve them.

II. BACKGROUND

The DRECP is being developed under the California Natural Community Conservation Planning Act (NCCPA), the Federal Endangered Species Act (FESA), and the Federal Land Policy and Management Act (FLPMA). In addition to the four REAT agencies (CEC, CDFW, BLM, and the Service) preparing the Plan, other agencies participating in the Plan process include the California Public Utilities Commission (CPUC), the California State Lands Commission (CSLC), California Department of Parks and Recreation, the California Independent System Operator, the National Park Service, the U.S. Environmental Protection Agency, and the U.S. Department of Defense.

State and Federal Renewable Energy Goals

The DRECP planning process began in late 2008, following California's Renewable Energy Transmission Initiative, which for the first time incorporated land-use planning into the statewide planning process for electric transmission facilities.¹⁴ That year Governor Schwarzenegger signed Executive Order S-14-08 establishing a 33 percent Renewable Portfolio Standard (RPS) target for California by 2020.¹⁵ The Order specified that the DRECP "shall provide binding, long-term endangered species permit assurances, facilitate the RPS desert project approval process, and provide a process for state and federal conservation funding to implement the DRECP."¹⁶ The Order directed the CEC and CDFW to initiate, by December 1, 2008, the DRECP process for the Mojave and Colorado Desert regions¹⁷ and to "issue the final DRECP by June 1, 2012."¹⁸ That final target has proven far too ambitious.

In early 2009, the Department of the Interior (DOI) issued Secretarial Order 3285, encouraging federal agencies to work with states, tribes, local governments, and other stakeholders to identify appropriate areas for renewable generation and transmission and to ensure environmentally responsible development of these resources on public lands.¹⁹ In June 2013, after the DRECP was underway, the President's Climate Action Plan directed the DOI to permit enough renewable projects on public lands by 2020 to power more than 6 million homes.²⁰

Since then, California Governor Jerry Brown, during his fourth inaugural address on January 5, 2015, announced California's intent to continue increasing the amount of electricity derived from renewable sources by 2030, from one-third to 50 percent.²¹ This is a target that exceeds the existing Renewable Portfolio Standard and is meant to keep the State on track to achieve the greenhouse gas target stated in Executive Order S-3-05—80% below 1990 levels by 2050.²²

Preparation of the DRECP

In March of 2009, the REAT agencies kicked off the DRECP with a series of public meetings to discuss ideas for the DRECP. Between 2009 and 2012, the REAT agencies created a stakeholder Advisory Committee and Independent Science Advisory panel and held more than 40 meetings involving stakeholders such as tribes, scientists and the public.²³ A draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS) was prepared pursuant to the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). The draft DRECP EIR/EIS was released for public review in September of 2014. Originally scheduled to close on January 9, 2015, the public comment period was extended by the REAT agencies to February 23, 2015 in response to numerous requests from the public. Ultimately over 12,000 comments were submitted on the draft DRECP.

The DRECP is comprised of three large efforts:

• BLM's Land Use Plan Amendment (LUPA) covering nearly 10 million acres of BLM-administered lands. The LUPA would establish management direction for BLM-administered land through amendment to existing land use plans.
• A General Conservation Plan (GCP) covering nearly 5.5 million acres of non-federal lands. The GCP would provide a programmatic framework for streamlining the incidental take permitting process under the Federal Endangered Species Act for renewable energy and transmission on non-federal lands. The DRECP includes incidental take permit applications from the CEC and CSLC.
• A state Natural Community Conservation Plan (NCCP) that encompasses the entire DRECP Plan Area and would provide for the conservation and management of covered species and the impacts that will result from activities covered by the DRECP.

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The DRECP would apply to certain "Covered Activities," which include pre-construction, construction, operation, maintenance, and decommissioning activities for wind, solar, solar-thermal, and transmission lines, so long as they are within "Development Focus Areas" (DFAs) in the Plan Area.²⁴

DRECP Target of 20,000 MW

The DRECP utilizes a top-down formula to: (1) estimate the amount of renewable energy potentially generated in the Plan area; and (2) allocate where renewable energy development should be located. In deciding how much renewable energy to plan for under the DRECP, the CEC developed a "renewable energy acreage calculator" to determine how much renewable energy, and...