Inflation Reduction Act Conditions for Issuing Rights-of-way for Solar or Wind Energy Development

This policy directs authorized officers regarding how to ensure that the conditions in Section 50265(b)(1) of the IRA have been satisfied prior to issuing a right-of-way (ROW) for solar or wind energy development. The actions to implement this policy include identifying time periods for issuance of ROWs, providing early internal notifications, and coordinating IRA compliance as follows:

Identifying windows for issuance of ROWs

As described further below, the BLM “issues” a solar or wind energy development ROW when the authorized officer signs and transmits a finalized ROW instrument to the applicant. To ensure that issuance of ROWs satisfies the conditions in Section 50265(b)(1) of the IRA, it is important for both applicants for ROWs and the BLM to be able to plan ahead.

IM 2023-006, Implementation of Section 50265 in the Inflation Reduction Act for Expressions of Interest for Oil and Gas Lease Sales, provides:

During the final month of each quarter, the BLM will evaluate EOIs received in that and (if necessary) prior quarters to ensure the EOIs meet all applicable requirements (e.g., to ensure that the submissions are “expressions of interest” within the meaning of the Mineral Leasing Act) and tabulate the associated acreage for purposes of IRA Section 50265.

For coordination, the BLM will identify the last week of each quarter as a window for potential issuance of ROWs and will post the available dates for issuance on  BLM’s Renewable Energy page. Authorized officers will also communicate these dates to ROW applicants.

Early Notification

To facilitate internal coordination in support of issuing ROWs during available windows, the Authorized Officer will provide to the appropriate Deputy State Director up-to-date information on the first workday of each quarter regarding the projected date for issuance of a solar or wind energy development ROW grant or lease. The Deputy State Director will provide the projected issuance date information, no later than the 15th day of each quarter, to the Headquarters Division Chief for Renewable Energy (HQ-330), including a list of ROW applications and a completed Inflation Reduction Act Compliance Determination Request (Attachment 1) for each ROW application.

Recognizing that anticipated dates for issuance may change as projects develop, the form set out in Attachment 1 may be revised as necessary, and early submission is nonetheless encouraged to support planning and coordination.

Completion of IRA Compliance Determination

Working with the Deputy State Director and Headquarters Division Chief for Fluid Minerals (HQ-310) or their designee, the Division Chief for Renewable Energy will coordinate with the requesting office to determine the appropriate day to perform IRA satisfaction analysis as described in IM-2023-006. Based on the analysis, HQ-310 will provide, within 3 business days, the requesting office Deputy State Director an Inflation Reduction Act Compliance Determination (Attachment 2). The determination will document that the conditions under Section 50265(b)(1) of the IRA have been met on the specific day the ROW for solar or wind energy development will be issued. The determination will be kept with the ROW records.

To satisfy the conditions in Section 50265(b)(1) of the IRA, it is essential that the Deputy State Director ensure that the Authorized Officer signs and transmits the ROW on the same day the BLM HQ determination memo is signed. If the ROW is not issued by the Authorized Officer on the date the determination memo is signed, an updated determination must be requested to document satisfaction of Section 50265(b)(1) of the IRA on the new date of issuance.

Supplemental information regarding solar and wind energy development in the context of the IRA

A ROW for solar or wind energy development is a ROW issued under Title V of the Federal Land Policy and Management Act, 43 U.S.C. 1761–1772, that authorizes the holder to use the public lands to generate electrical energy from solar or wind resources. Other BLM authorizations, including ROWs issued for purposes that do not directly involve generating electricity—such as a ROW authorizing only site-testing, a communication site, a transmission line, a gen-tie line, a pipeline, a road, installation of a battery or other energy storage system, or other uses that might indirectly support energy production or transmission—are not ROWs for solar or wind energy development and are therefore unaffected by the IRA.

The BLM issues a solar or wind energy development ROW when the authorized officer signs and transmits a finalized ROW instrument to the applicant.[2] The IRA does not affect other stages of the BLM’s solar or wind energy permitting process. Thus, the IRA does not affect the BLM’s ability to publish a notice of competitive offer (NOCO), hold a competitive offer, initiate or complete environmental review under the National Environmental Policy Act or other relevant laws, publish a decision to approve or deny a proposed ROW, or offer an unsigned ROW instrument to an applicant for its review and signature. Similarly, for solar or wind energy development ROWs that have already been issued, the IRA does not affect the BLM’s ability to approve or issue a Notice to Proceed, an assignment,[3] certain renewals, or re-issue the ROW with the same terms and conditions. The authorized officer should coordinate with the Office of the Solicitor to determine whether IRA conditions must be met when seeking to amend the terms and conditions.

This IM also requires including language (Attachment 3) in any NOCO for a solar or wind energy development lease.

[1] This IM is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person.

[2] For ROWs, this process is described in BLM regulations. After the applicant has signed a grant instrument and returned it to the BLM, and after the BLM has verified that all applicable conditions have been met, the BLM “will sign the grant and return it to [the applicant] with a final decision issuing the grant.” 43 CFR 2805.10(c). The BLM issues right-of-way leases through a similar process under 43 CFR 2809.15. The right-of-way grant is considered transmitted to the applicant at the time the BLM sends an email containing the finalized grant instrument or on the date that the certified mail containing said instrument is postmarked.  If the BLM opts to both email and mail the finalized instrument, the transmission date is the earlier of the two dates. 

[3] A ROW assignment allows a ROW holder to transfer a partial or whole right-of-way interest to a third party. 43 CFR 2801.5(b), 2807.21.