116th CONGRESS 1st Session |
To promote the development of renewable energy on public land, and for other purposes.
October 22, 2019
Ms. McSally (for herself, Mr. Heinrich, Mr. Gardner, Mr. Udall, Mr. Daines, Mr. Tester, Mr. Risch, and Mr. Bennet) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources
To promote the development of renewable energy on public land, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Public Land Renewable Energy Development Act of 2019”.
In this Act:
(1) COVERED LAND.—The term “covered land” means land that is—
(A) public land; and
(B) not excluded from the development of geothermal, solar, or wind energy under—
(i) a land use plan established under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.); or
(ii) other Federal law.
(2) EXCLUSION AREA.—The term “exclusion area” means covered land that is identified by the Bureau of Land Management as not suitable for development of renewable energy projects.
(3) FEDERAL LAND.—The term “Federal land” means—
(A) National Forest System land; and
(B) public land.
(4) FUND.—The term “Fund” means the Renewable Energy Resource Conservation Fund established by section 9(c)(1).
(5) NATIONAL FOREST SYSTEM.—The term “National Forest System” has the meaning given the term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).
(6) PRIORITY AREA.—The term “priority area” means covered land identified by the land use planning process of the Bureau of Land Management as being a preferred location for a renewable energy project, including a designated leasing area (as defined in section 2801.5(b) of title 43, Code of Federal Regulations (or a successor regulation)) that is identified under the rule of the Bureau of Land Management entitled “Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development and Technical Changes and Corrections” (81 Fed. Reg. 92122 (December 19, 2016)) (or a successor regulation).
(7) PUBLIC LAND.—The term “public land” has the meaning given the term “public lands” in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702).
(8) RENEWABLE ENERGY PROJECT.—The term “renewable energy project” means a project carried out on covered land that uses wind, solar, or geothermal energy to generate energy.
(9) SECRETARY.—The term “Secretary” means the Secretary of the Interior.
(10) VARIANCE AREA.—The term “variance area” means covered land that—
(A) is not an exclusion area; and
(B) is not a priority area.
SEC. 3. Land use planning; supplements to programmatic environmental impact statements.
(1) IN GENERAL.—The Secretary, in consultation with the Secretary of Energy, shall establish priority areas on covered land for geothermal, solar, and wind energy projects.
(A) GEOTHERMAL ENERGY.—For geothermal energy, the Secretary shall establish priority areas as soon as practicable, but not later than 5 years, after the date of enactment of this Act.
(B) SOLAR ENERGY.—For solar energy, the Secretary shall establish additional priority areas as soon as practicable, but not later than 3 years, after the date of enactment of this Act.
(C) WIND ENERGY.—For wind energy, the Secretary shall establish priority areas as soon as practicable, but not later than 3 years, after the date of enactment of this Act.
(b) Variance areas.—To the maximum extent practicable, variance areas shall be considered for renewable energy project development, consistent with the principles of multiple use (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)).
(c) Review and modification.—Not less frequently than once every 5 years, the Secretary shall—
(1) review the adequacy of land allocations for geothermal, solar, and wind energy priority and variance areas for the purpose of encouraging new renewable energy development opportunities; and
(2) based on the review carried out under paragraph (1), add, modify, or eliminate priority, variance, and exclusion areas.
(d) Compliance with the national environmental policy act.—For purposes of this section, compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall be accomplished—
(1) for geothermal energy, by supplementing the October 2008 final programmatic environmental impact statement for geothermal leasing in the Western United States, including by incorporating any additional regional analyses that were completed by Federal agencies after the date on which the programmatic environmental impact statement was finalized;
(2) for solar energy, by supplementing the July 2012 final programmatic environmental impact statement for the Solar Energy Program of the Bureau of Land Management, including by incorporating any additional regional analyses that were completed by Federal agencies after the date on which the programmatic environmental impact statement was finalized; and
(3) for wind energy, by supplementing the July 2005 final programmatic environmental impact statement for wind energy development, including by incorporating any additional regional analyses that were completed by Federal agencies after the date on which the programmatic environmental impact statement was finalized.
(e) No effect on processing applications.—A requirement to prepare a supplement to a programmatic environmental impact statement under this section shall not result in any delay in processing an application for a renewable energy project.
(f) Coordination.—In developing a supplement required by this section, the Secretary shall coordinate, on an ongoing basis, with appropriate State, Tribal, and local governments, transmission infrastructure owners and operators, developers, and other appropriate entities to ensure that priority areas identified by the Secretary are—
(1) economically viable (including having access to existing or planned transmission capacity);
(2) likely to avoid or minimize conflict with habitat for animals and plants, recreation, cultural resources, and other uses of covered land; and
(3) consistent with section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712), including subsection (c)(9) of that section (43 U.S.C. 1712(c)(9)).
SEC. 4. Environmental review on covered land.
(a) In general.—If the Secretary determines that a proposed renewable energy project has been sufficiently analyzed by a programmatic environmental impact statement conducted under section 3(d), the Secretary shall not require any additional review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(b) Additional environmental review.—If the Secretary determines that additional environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) is necessary for a proposed renewable energy project, the Secretary shall rely on the analysis in the programmatic environmental impact statement conducted under section 3(d) to the maximum extent practicable when analyzing the potential impacts of the project.
(c) Relationship to Other Law.—Nothing in this section modifies or supersedes any requirement under applicable law.
SEC. 5. Program to improve renewable energy project permit coordination.
(1) IN GENERAL.—The Secretary shall establish and implement, through the offices established under paragraph (2), a program to improve Federal permit coordination with respect to renewable energy projects on covered land.
(2) ESTABLISHMENT OF OFFICES.—To establish and implement the program described in paragraph (1), and to carry out other necessary activities, as determined by the Secretary, the Secretary shall establish—
(A) an office to serve as the National Renewable Energy Coordination Office; and
(B) State, district, or field Renewable Energy Coordination Offices, for such time as the Secretary determines to be appropriate.
(b) Memorandum of understanding.—
(1) IN GENERAL.—Not later than 180 days after the date of enactment of this Act, the Secretary shall enter into a memorandum of understanding for purposes of this section, including to specifically expedite the environmental analysis of applications for projects proposed in a variance area or a priority area, with—
(A) the Secretary of Defense; and
(B) the Secretary of Agriculture.
(2) STATE PARTICIPATION.—The Secretary may request the Governor of any interested State to be a signatory to the memorandum of understanding under paragraph (1).
(c) Designation of Qualified Staff.—
(1) IN GENERAL.—Not later than 30 days after the date on which the memorandum of understanding under subsection (b) is executed, all Federal signatories, as appropriate, shall identify for the National Renewable Energy Coordination Office established under subsection (a)(2)(A) and each Renewable Energy Coordination Office established under subsection (a)(2)(B) 1 or more employees who have expertise in the regulatory issues relating to the office in which the employee is employed, including, as applicable, particular expertise in—
(A) consultation regarding, and preparation of, biological opinions under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536);
(B) permits under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344);
(C) regulatory matters under the Clean Air Act (42 U.S.C. 7401 et seq.);
(D) the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.);
(E) the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.);
(F) the preparation of analyses under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(G) implementation of the requirements of section 306108 of title 54, United States Code (formerly known as section 106 of the National Historic Preservation Act);
(H) planning under section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a); and
(I) the Act of June 8, 1940 (54 Stat. 250, chapter 278; 16 U.S.C. 668 et seq.) (commonly known as the “Bald Eagle Protection Act”).
(2) DUTIES.—Each employee assigned under paragraph (1) shall—
(A) be responsible for addressing all issues relating to the jurisdiction of the home office or agency of the employee; and
(B) participate as part of the team of personnel working on proposed energy projects, planning, monitoring, inspection, enforcement, and environmental analyses.
(d) Clarification of existing authority.—Section 307 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1737) is amended by adding at the end the following:
“(h) Donations.—The Secretary, in accordance with subsection (c), may accept donations from renewable energy companies working on public lands, including donations to help cover the costs of environmental reviews.”.
(1) IN GENERAL.—Not later than February 1 of the first fiscal year beginning after the date of enactment of this Act, and each February 1 thereafter, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a report describing the progress made under the program established under subsection (a)(1) during the preceding year.
(2) INCLUSIONS.—Each report under paragraph (1) shall include—
(A) projections for renewable energy production and capacity installations; and
(B) a description of any problems relating to leasing, permitting, siting, or production.
SEC. 6. Increasing economic certainty.
(a) In general.—The Secretary shall consider the total amount paid in acreage rental rates, capacity fees, and other recurring annual fees in evaluating existing rates paid by renewable energy projects for the use of Federal land.
(b) Increases in base rental rates.—After a base rental rate is established on an issuance of a right-of-way authorization, for the entire term of the right-of-way authorization, any increase in the base rental rate shall be limited to the Implicit Price Deflator–Gross Domestic Product Index published by the Bureau of Economic Analysis of the Department of Commerce on the date of issuance of the right-of-way authorization.
(c) Reductions in base rental rates.—The Secretary may reduce acreage rental rates and capacity fees for existing and new wind and solar authorizations if the Secretary determines—
(A) exceed fair market value;
(B) impose economic hardships;
(C) limit commercial interest in a competitive lease sale or right-of-way grant; or
(D) are not competitively priced compared to other available land; or
(2) that a reduced rental rate or capacity fee is necessary to promote the greatest use of wind and solar energy resources, especially inside priority areas.
SEC. 7. Limited grandfathering.
(a) Definition of project.—In this section, the term “project” means a system described in section 2801.9(a)(4) of title 43, Code of Federal Regulations (as in effect on the date of enactment of this Act).
(b) Requirement To pay rents and fees.—The owner of a project that applied for a right-of-way under section 501 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761) on or before December 19, 2016, shall be obligated to pay with respect to the right-of-way all rents and fees in effect before the effective date of the rule of the Bureau of Land Management entitled “Competitive Processes, Terms, and Conditions for Leasing Public Lands for Solar and Wind Energy Development and Technical Changes and Corrections” (81 Fed. Reg. 92122 (December 19, 2016)).
SEC. 8. Renewable energy goal.
The Secretary and the Secretary of Agriculture, through management of public land and administration of Federal laws, shall seek to issue permits that, in total, authorize production of not less than 25 gigawatts of electricity from wind, solar, and geothermal energy projects by not later than December 31, 2025.
SEC. 9. Disposition of revenues.
(a) Disposition of revenues.—Without further appropriation or fiscal year limitation, of the amounts collected as bonus bids, rentals, fees, or other payments under a right-of-way, permit, lease, or other authorization (other than under section 504(g) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1764(g))) for the development of wind or solar energy on covered land or National Forest System land—
(1) for the period beginning on January 1, 2020, and ending on December 31, 2039—
(A) 25 percent shall be paid by the Secretary of the Treasury to the State within the boundaries of which the revenue is derived;
(B) 25 percent shall be paid by the Secretary of the Treasury to the 1 or more counties within the boundaries of which the revenue is derived, to be allocated among the counties based on the percentage of land from which the revenue is derived;
(C) 15 percent shall be deposited in the Treasury and be made available to the Secretary to carry out the program established under section 5(a), including the transfer of the funds by the Bureau of Land Management to other Federal agencies and State agencies to facilitate the processing of renewable energy permits on Federal land, with priority given to using the amounts, to the maximum extent practicable without detrimental impacts to emerging markets, to expediting the issuance of permits required for the development of renewable energy projects in the States from which the revenues are derived; and
(D) 35 percent shall be deposited in the Fund; and
(2) beginning on January 1, 2040—
(A) 25 percent shall be paid by the Secretary of the Treasury to the State within the boundaries of which the revenue is derived;
(B) 25 percent shall be paid by the Secretary of the Treasury to the 1 or more counties within the boundaries of which the revenue is derived, to be allocated among the counties based on the percentage of land from which the revenue is derived;
(C) 10 percent shall be deposited in the Treasury and be made available to the Secretary to carry out the program established under section 5(a), including the transfer of the funds by the Bureau of Land Management to other Federal agencies and State agencies to facilitate the processing of renewable energy permits on Federal land, with priority given to using the amounts, to the maximum extent practicable without detrimental impacts to emerging markets, to expediting the issuance of permits required for the development of renewable energy projects in the States from which the revenues are derived; and
(D) 40 percent shall be deposited in the Fund.
(b) Payments to states and counties.—
(1) IN GENERAL.—Amounts paid to States and counties under subsection (a) shall be used consistent with section 35 of the Mineral Leasing Act (30 U.S.C. 191).
(2) PAYMENTS IN LIEU OF TAXES.—A payment to a county under paragraph (1) shall be in addition to a payment in lieu of taxes received by the county under chapter 69 of title 31, United States Code.
(c) Renewable energy resource conservation fund.—
(1) IN GENERAL.—There is established in the Treasury a fund, to be known as the “Renewable Energy Resource Conservation Fund”, which shall be administered by the Secretary, in consultation with the Secretary of Agriculture.
(2) USE OF FUNDS.—The Secretary may make amounts in the Fund available to Federal, State, local, and Tribal agencies to be distributed in regions in which renewable energy projects are located on Federal land, for the purposes of—
(i) fish and wildlife habitat for affected species;
(ii) fish and wildlife corridors for affected species; and
(iii) water resources in areas affected by wind, geothermal, or solar energy development; and
(B) preserving and improving recreational access to Federal land and water in an affected region through an easement, right-of-way, or other instrument from willing landowners for the purpose of enhancing public access to existing Federal land and water that is inaccessible or restricted.
(3) PARTNERSHIPS.—The Secretary may enter into cooperative agreements with State, local, and Tribal agencies, nonprofit organizations, and other appropriate entities to carry out the activities described in subparagraphs (A) and (B) of paragraph (2).
(A) IN GENERAL.—Any amounts deposited in the Fund shall earn interest in an amount determined by the Secretary of the Treasury on the basis of the current average market yield on outstanding marketable obligations of the United States of comparable maturities.
(B) USE.—Any interest earned under subparagraph (A) may be expended in accordance with this subsection.
(5) REPORT TO CONGRESS.—At the end of each fiscal year, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a report identifying—
(A) the amounts described in subsection (a) that were collected during that fiscal year, organized by source;
(B) the amount and purpose of payments made to each Federal, State, local, and Tribal agency under paragraph (2) during that fiscal year; and
(C) the amount remaining in the Fund at the end of the fiscal year.
(6) INTENT OF CONGRESS.—It is the intent of Congress that the revenues deposited and used in the Fund shall supplement (and not supplant) annual appropriations for activities described in subparagraphs (A) and (B) of paragraph (2).
SEC. 10. Promoting and enhancing development of geothermal energy.
(a) In general.—Section 234(a) of the Energy Policy Act of 2005 (42 U.S.C. 15873(a)) is amended by striking “in the first 5 fiscal years beginning after the date of enactment of this Act” and inserting “through fiscal year 2022”.
(b) Authorization.—Section 234(b) of the Energy Policy Act of 2005 (42 U.S.C. 15873(b)) is amended—
(1) by striking “Amounts” and inserting the following:
“(1) IN GENERAL.—Amounts”; and
(2) by adding at the end the following:
“(2) AUTHORIZATION.—Effective for fiscal year 2020 and each fiscal year thereafter, amounts deposited under subsection (a) shall be available to the Secretary of the Interior for expenditure, without further appropriation or fiscal year limitation, to implement the Geothermal Steam Act of 1970 (30 U.S.C. 1001 et seq.) and this Act.”.
SEC. 11. Facilitation of coproduction of geothermal energy on oil and gas leases.
Section 4 of the Geothermal Steam Act of 1970 (30 U.S.C. 1003) is amended—
(1) in subsection (c), by striking “The Secretary” and inserting the following:
“(1) IN GENERAL.—The Secretary”;
(2) in subsection (b), by redesignating paragraph (3) as paragraph (2) and moving the paragraph so as to appear after paragraph (1) of subsection (c) (as designated by paragraph (1)); and
(3) in subsection (c) (as amended by paragraphs (1) and (2)), by adding at the end the following:
“(3) LAND SUBJECT TO OIL AND GAS LEASE.—
“(A) DEFINITION OF LAND.—In this paragraph, the term ‘land’ means land that—
“(i) is under an oil and gas lease issued pursuant to the Mineral Leasing Act (30 U.S.C. 181 et seq.) or the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351 et seq.);
“(ii) is subject to an approved application for permit to drill; and
“(iii) from which oil and gas production is occurring.
“(B) GEOTHERMAL ENERGY.—Land may be available for noncompetitive leasing under this section to the holder of an oil and gas lease described in subparagraph (A)(i)—
“(i) if the Secretary determines that geothermal energy will be produced from a well that is producing or is capable of producing oil and gas; and
“(ii) to provide for the coproduction of geothermal energy with oil and gas.”.
SEC. 12. Noncompetitive leasing of adjoining areas for development of geothermal resources.
Section 4(c) of the Geothermal Steam Act of 1970 (30 U.S.C. 1003(c)) (as amended by section 11) is amended by adding at the end the following:
“(A) DEFINITIONS.—In this paragraph:
“(i) FAIR MARKET VALUE PER ACRE.—The term ‘fair market value per acre’ means a dollar amount per acre that—
“(I) subject to subclause (II), is equal to the market value per acre, as determined by the Secretary—
“(aa) under regulations promulgated under this paragraph;
“(bb) taking into account the data described in subparagraph (B)(iii) regarding a valid discovery under subclause (I) of that subparagraph; and
“(cc) not later than 180 days after the date on which the Secretary receives an application for a lease under this paragraph; and
“(II) shall be not less than the greater of—
“(aa) 4 times the median amount paid per acre for all land leased under this Act during the preceding year; or
“(bb) $50.
“(ii) INDUSTRY STANDARDS.—The term ‘industry standards’ means the standards by which a qualified geothermal professional assesses whether downhole or flowing temperature measurements with indications of permeability are sufficient to produce energy from geothermal resources, as determined through flow or injection testing or measurement of lost circulation while drilling.
“(iii) QUALIFIED FEDERAL LAND.—The term ‘qualified Federal land’ means land that is available for leasing under this Act.
“(iv) QUALIFIED GEOTHERMAL PROFESSIONAL.—The term ‘qualified geothermal professional’ means an individual who is an engineer or geoscientist in good professional standing with at least 5 years of experience in geothermal exploration, development, or project assessment.
“(v) QUALIFIED LESSEE.—The term ‘qualified lessee’ means a person that is eligible to hold a geothermal lease under this Act (including applicable regulations).
“(vi) VALID DISCOVERY.—The term ‘valid discovery’ means a discovery, by a new or existing slim hole or production well, of a geothermal resource that exhibits downhole or flowing temperature measurements with indications of permeability that are sufficient to meet industry standards.
“(B) AUTHORITY.—An area of qualified Federal land that adjoins other land for which a qualified lessee holds a legal right to develop geothermal resources may be available for a noncompetitive lease under this section to the qualified lessee at the fair market value per acre, if—
“(i) the area of qualified Federal land—
“(I) consists of not less than 1 acre and not more than 640 acres; and
“(II) is not already leased under this Act or nominated to be leased under subsection (a);
“(ii) the qualified lessee has not previously received a noncompetitive lease under this paragraph in connection with the valid discovery for which data has been submitted under clause (iii)(I); and
“(iii) sufficient geological and other technical data prepared by a qualified geothermal professional has been submitted by the qualified lessee to the applicable Federal land management agency that would lead individuals who are experienced in the subject matter to believe that—
“(I) there is a valid discovery of geothermal resources on the land for which the qualified lessee holds the legal right to develop geothermal resources; and
“(II) those geothermal resources extend into the adjoining areas.
“(C) REGULATIONS FOR DETERMINING FAIR MARKET VALUE.—The Secretary shall promulgate regulations establishing a procedure to determine fair market value per acre under subparagraph (A)(i)(I) for purposes of this paragraph.
“(i) IN GENERAL.—The Secretary shall—
“(I) publish a notice of any request to lease land under this paragraph;
“(II) provide to a qualified lessee and publish, with an opportunity for public comment for a period of 30 days, any proposed determination under this paragraph of the fair market value per acre of an area that the qualified lessee seeks to lease under this paragraph; and
“(III) provide to the qualified lessee and any adversely affected party the opportunity to appeal the final determination of the fair market value per acre of the area in an administrative proceeding before the applicable Federal land management agency, in accordance with applicable law (including regulations).
“(ii) LIMITATION ON NOMINATION.—After publication of a notice of request to lease land under this paragraph, the Secretary may not accept any nomination to lease that land under subsection (a) unless the request has been denied or withdrawn.
“(iii) ANNUAL RENTAL.—For purposes of section 5(a)(3), a lease awarded under this paragraph shall be considered a lease awarded in a competitive lease sale.
“(E) REGULATIONS.—Not later than 270 days after the date of enactment of the Public Land Renewable Energy Development Act of 2019, the Secretary shall issue regulations to carry out this paragraph.”.
Notwithstanding any other provision of this Act, the Secretary shall continue to manage public land under the principles of multiple use and sustained yield in accordance with title I of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), including due consideration of mineral and nonrenewable energy-related projects and other nonrenewable energy uses, for the purposes of land use planning, permit processing, and conducting environmental reviews.