The BLM requires the holder of an authorized right-of-way (ROW) to meet specific development standards.
The ROW regulations specify that a ROW authorization conveys to the holder only the rights that the authorization expressly contains (43 CFR 2805.14) and that the holder must comply with all terms and conditions included in the authorization (43 CFR 2805.12). To facilitate efficient development of solar energy on the public lands, the BLM will include a requirement in each ROW authorization that the holder begin construction of the initial phase of development within 12 months after issuance of the Notice to Proceed, but no later than 24 months after the effective date of the ROW authorization. Each authorization will also specify that construction must be completed within the time frames in the approved Plan of Development (POD), but no later than 24 months after the start of construction unless the project has been approved for phased development as described below. A Notice to Proceed will be issued for each phase of development.
The BLM will not authorize more than three development phases for any solar energy ROW authorization. If an approved POD provides for phased development, the ROW authorization will include provisions specifying that construction of each phase (following the first) must begin within 3 years of the start of construction of the previous phase.
The BLM authorized officer may suspend or terminate the authorization when the holder fails to comply with the diligent development terms and conditions of the authorization (43 CFR 2807.17). The regulations provide that before suspending or terminating the authorization, the BLM will send the holder a written notice that gives the holder a reasonable opportunity to correct any noncompliance or to start or resume use of the ROW (43 CFR 2807.18). This notice may be satisfied by the BLM sending a Notice of Failure to Ensure Diligent Development.
To address a failure to comply with an authorization's diligent development provisions, the holder must show good cause for any delays in construction, provide the anticipated date of completion of construction, and evidence of progress toward the start or resumption of construction, as well as submitting a written request for extension of the time lines in the approved POD. Good cause may be shown, for example, by delays in equipment delivery, legal challenges, and acts of God. This procedure will apply whether a project has multiple development phases or a single phase.
If, following receipt of a Notice of Failure to Ensure Diligent Development, the holder has satisfactorily complied with each of the requirements of the procedure described above, the authorized officer may grant the holder's request for an extension of the timelines in the approved POD. If, following receipt of such Notice, the holder does not satisfactorily comply with each of the requirements of this procedure, the authorized officer may elect to suspend or terminate the ROW authorization pursuant to 43 CFR 2807.17, where such action is justified.
Each ROW authorization for solar energy development will include terms and conditions requiring the holder to maintain all on-site electrical generation equipment and facilities in accordance with the design standards in the approved POD. In addition, the authorization will specify that any idle, improperly functioning, or abandoned equipment or facilities that have been inoperative for any continuous period of 3 months must be repaired, placed into service, or removed from the site within 30 days from receipt of a written Notice of Failure to Ensure Diligent Development, unless the holder is provided an extension of time by the BLM authorized officer. Upon receipt of such Notice from the BLM authorized officer, the holder must repair, place into service, or remove the equipment or facilities described in the Notice in a timely manner.
Alternatively, the holder must show good cause for any delays in repairs, use, or removal; estimate when corrective action will be completed; provide evidence of diligent operation of the equipment and/or facilities; and submit a written request for an extension of the 30-day deadline. If the holder satisfies neither approach, the BLM authorized officer may elect to suspend or terminate the authorization in accordance with 43 CFR 2807.17'2807.19, where such action is justified. In addition, the BLM may use the posted Performance and Reclamation bond to cover the costs for removal of any idle or abandoned equipment and/or facilities.
All solar energy ROW authorizations must include the diligent development provisions as described above in the terms and conditions of the authorization, consistent with the requirements of 43 USC 1765(b) and the ROW regulations at 43 CFR 2801.2.