The California desert has vast expanses of land that host some of the highest solar insolation in the world. It is also home to a myriad of sensitive habitats for endangered species. This convergence of strong federal and state policies favoring renewable energy development and laws that protect species and the environment at large makes the California desert "ground zero" for an epic effort to balance climate-saving renewable energy development and the protection of desert ecosystems.
There are many legal, regulatory and political challenges to building solar projects in an environment with little water and many endangered species. Those obstacles have forced a few companies to abandon plans for projects all together. Several, though, are moving forward as state and federal agencies strive to coordinate and streamline the approval process.
While environmental groups generally support solar development to alleviate climate change impacts, they have opposed some projects and insist they be sited on land already disturbed by ranching and other human activity so they do not harm habitat needed by endangered species.
U.S. Sen. Dianne Feinstein, D-Caliph., seeking to balance the competing goals of habitat conservation and renewable energy development, testified before Congress in May to urge support for legislation she introduced last December to protect the most sensitive areas in the Mojave Desert while expediting renewable energy development in areas deemed less necessary for species preservation. More recently, a team of state and federal agencies established a species mitigation account that streamlines some of the environmental hurdles for developers.
Navigating the shifting desert regulatory terrain is a challenge for renewable energy developers. Understanding the legal framework in the critical areas of water and endangered species is essential for project development to proceed.
The Liquid Equation
Water availability is a pivotal issue in project design. Photovoltaic and dry-cooled thermal projects use relatively modest amounts of water. Wet-cooled solar thermal projects use considerably more. All projects must identify a water source, posing a challenge in the water-scarce deserts.
Due to very limited surface water supplies in the Mojave and Colorado deserts of Southern California, renewable energy projects rely mainly on groundwater. There are a panoply of legal, economic, and environmental considerations surrounding groundwater that make securing it a difficult exercise.
Much of the desert land that is suitable for solar development overlies groundwater basins. The quantity of groundwater, however, is limited. Rainfall is scarce; recharge occurs at a very slow rate; and pumping large quantities of groundwater for extended durations is not sustainable. Groundwater rights in some basins, such as the Mojave Basin, have already been allocated by the courts through adjudications, leaving no additional water for newcomers. Unadjudicated basins, by comparison, are governed by the common law principle of the doctrine of overlying rights. A key principle of California water law is that landowners whose property overlies a groundwater basin are entitled to pump water for "reasonable and beneficial use" on their overlying land.
Despite this basic principle of California water law, several solar project proponents have experienced notable resistance from various state and federal agencies to pumping groundwater for power plant cooling purposes on their property. The current regulatory regime, in this way, impedes the statewide mandate to utilize 33 percent of purchased energy from renewable energy sources by 2020.
Politically, there is also a tremendous push by the state to see wastewater used for power plant cooling. Developers may need to demonstrate the economic infeasibility of using recycled water before getting approval to use groundwater. This might seem easy given the lack of wastewater treatment plants in the desert region and the general unavailability, in the near-term, of the infrastructure required to transport recycled water to desert outposts, however regulatory agencies carefully examine the economic feasibility issue.
On the federal side, the United States exercises jurisdiction over all groundwater hydrologically connected to the Colorado River. The U.S. Bureau of Reclamation has proposed defining those hydrologically connected groundwaters by an "accounting surface" regulation that would limit lower Colorado River water use in absence of a federal Colorado River water entitlement. The proposed accounting surface in some areas extends more than 50 miles from the river, impacting proposed solar projects with no apparent connection to the Colorado River. There is also legislation proposed by Feinstein that would prohibit the Bureau of Reclamation from offering a right-of-way to any development project that intends to use native groundwater from aquifers adjacent to the Mojave National Preserve in excess of an estimated recharge rate.
The Endangered Species Factor
Some solar energy developers have had to learn quickly that powerful state and federal laws protect certain plant and animal species that inhabit the harsh desert landscapes.
BrightSource Energy, an Oakland, California-based company, had to abandon its plan to build a three-plant solar thermal complex in the eastern Mojave Desert mainly because of concerns over its impacts to the environmentally sensitive area.
Company officials then found what they believed to be a more environmentally friendly project site in the Mojave Desert. But even that location – in Ivanpah near the Nevada border – met resistance. San Bernardino County Supervisor Brad Mitzelfelt, whose district includes Ivanpah, said the project would create jobs mostly for Las Vegas and electricity for San Francisco at the expense of the relatively pristine area of eastern San Bernardino County. Likewise, environmental groups called for the project to relocate again due to its potential impacts on the desert tortoise, a state and federally protected species whose habitat spans large sections of the Mojave Desert.
In response to concerns raised during the permitting process, BrightSource in February submitted an alternative design for the Ivanpah project to state and federal agencies that would reduce the project's footprint, thus significantly minimizing its potential environmental impacts and avoiding the habitat of rare plants and other species.
When state or federally listed species come into play, a developer typically must be prepared to hire biological consultants to analyze the proposed project site, in some instances prepare a survey to determine the presence or absence of the species and work closely with the resource agencies.
Depending on what species are found near the potential project site, developers may have to create plans to avoid, minimize and mitigate impacts to the species. For example, if it is determined that a project may impact the desert tortoise, the developer may have to prepare a plan to prevent ravens from being attracted to the site because they prey on desert tortoises, particularly young ones. Such plans may include the use of raven-proof trash recepticals, prohibitions on open water sources, and implementation of repellant devices to discourage nesting, perching and roosting on project facilities.
To facilitate and better coordinate efforts for addressing endangered species issues with several projects, the joint federal and state Renewable Energy Action Team (REAT) signed an agreement in May to help renewable energy developers satisfy mitigation requirements by depositing funds into an account rather than having to individually undertake wildlife and habitat mitigation.
Project proponents taking part in this account will be able to promptly satisfy some or all mitigation requirements leading to timelier contracting and construction, which will increase a project's eligibility for funding from the American Recovery & Reinvestment Act of 2009. Opting into the REAT account does not, however, reduce all mitigation requirements for projects; it only covers mitigation for impacts to fish, wildlife, plants and their habitats. Other mitigation for impacts to viewsheds, noise, air quality and cultural resources may also be required. Detailed mitigation actions determined by REAT agencies for each project must still be included and addressed in the project's environmental analysis and decision documents required under the National Environmental Policy Act and the California Environmental Quality Act, known as CEQA
The bill introduced by Feinstein also seeks to expedite
endangered species mitigation by defining habitat mitigation zones
and establishing a mitigation fund. Feinstein's legislation, if
passed, would protect one million acres of the Mojave Desert
by designating two new national monuments, and a number of
additional wilderness and other special-use areas.
The legislation also seeks to expedite renewable energy development
in less sensitive areas by establishing renewable energy
coordination offices; deadlines for application processing; and a
one-year time line to complete programmatic environmental impact
reports. However, until that legislation is passed and implemented,
ensuring compliance with established laws and methods for
minimizing impacts to protected species in the early phases of
project development will avoid unnecessary delay and costs.
Navigating The Environmental Process
State and federal agencies – namely the U.S. Department of Energy, U.S. Bureau of Land Management, California Energy Commission, and California Department of Fish and Game – are developing programs to establish environmental policies and mitigation strategies for utility-scale solar energy development.
In July 2009, the Bureau of Land Management designated over 675,000 acres of land across six Western states, including California, to study the potential for large-scale solar development. These particular areas were initially chosen based on their excellent solar resources, suitable slope, proximity to roads and transmission lines or designated corridors, and size.
The anticipated result is a streamlined process for permitting and siting responsible solar development. Additionally, companies that are ultimately chosen to develop in the study areas would be eligible for priority processing. The public will have the opportunity to comment on these proposed solar energy study areas before any final decisions are made. The evaluation is set for completion in late 2010.
In California, a memorandum of understanding signed last October by Interior Secretary Ken Salazar and Governor Schwarzenegger created a Renewable Energy Policy Group – made up of representatives from the Interior Department and the Governor's Office – to guide applicants through the permitting process.
The policy group is working with the REAT to focus permitting resources, prepare a conservation strategy and give priority to those applications for solar development in any areas ultimately identified as solar energy zones. Specifically, the action team is promoting efficient renewable energy development by assigning high priority to such projects and allocating specific staff resources to work on these applications; obtaining additional staff and resources to review renewable projects; and establishing more intensive coordination among agencies through regular meetings.
The REAT is also charged with defining renewable energy development areas. The Mojave and Colorado Desert regions have already been designated as top priority areas. As a result, the action team initiated the Desert Renewable Energy Conservation Plan, which through 2010 will identify other top Natural Community Conservation Plan areas and establish best management practices for their development. By 2012, a final version with permits is expected. Throughout the development period, applicants should meet with participating agencies on a regular basis.
Currently, there are a number of large-scale solar thermal developments on federal land in California that are being reviewed by the BLM and California Energy Commission under a joint state and federal process that seeks to integrate the federal review process under the National Environmental Policy Act and the California Energy Commission's Certified Regulatory Program, which is similar to the CEQA process.
Some of these applications for certification have been determined "data adequate," meaning the California Energy Commission's technical staff has received enough information from the applicant to begin the evidentiary phase of the review proceedings. During the evidentiary phase, the Bureau of Land Management and California Energy Commission are compiling a list of issues and presenting them to the applicant to receive any additional information needed to proceed. After all necessary information is gathered and preliminary reports are complete, the agencies will develop a joint final staff assessment/final environmental impact statement that outlines the issues and responsibilities of both agencies.
Despite what appears to be a daunting regulatory process, the political will for developing solar projects is very strong at both the state and federal level. Building on California's aggressive renewable energy goals, the state now has a comprehensive list of 244 proposed renewable energy projects – solar, wind, geothermal and biomass – that could produce up to almost 70,000 megawatts of clean energy each year. Currently, facilities in California produce just more than 8,000 megawatts annually.
Interior Secretary Salazar, during a tour of a solar plant in the Mojave Desert last spring, said: "I cannot think of a more appropriate place to underscore that renewable energy is not 'pie in the sky' than here at the edge of the Mojave Desert where the largest solar plant in the world is generating clean, cost-efficient renewable energy for California communities."
"This is the future we are working to achieve - visionary investment in cutting-edge technology; good, solid jobs for American workers; clean energy for American homes, businesses and industry; and renewable resources used efficiently and effectively for the betterment of communities, California and the nation."
This article was originally published in the Solar Industry's Show Daily, July 2010.
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