Prior to the new rule, mining companies could use provisions contained within an arcane 1872 law to swoop in and take priority over all other land-use claims.
The new rule, which segregates renewable energy applications from mining company claims, is part of an effort by President Barack Obama’s administration to accelerate the authorisation of 10GW of non-hydropower renewable energy for construction on public land by 2015. About a quarter of the total is expected to come from wind generation, according to Ray Brady, manager of BLM’s energy policy team.
In the past two years, 437 new mining claims were lodged within 47 wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah and Wyoming. As a typical mining claim affects a land area of just eight hectares, individual wind developments have been susceptible to multiple claims. In some cases, mining companies demanded payments from renewable-energy developers before allowing them to pursue the ROW, says Brady.
Prior to the rule, the prospect of last-minute mining claims — relatively inexpensive to make and easy to file — often made investors wary of financing renewable energy projects on BLM land, according to Brady. The 1872 law prevented the agency from issuing leases for renewable-energy projects until all mining claims were completely resolved.
"It became an issue that was raised to our level because of the loan guarantees and other financing that the US Department of Energy was providing to some of these projects," says Brady. "Some of the financing has been held up until the resolution of the mining claim. We wanted something that would eliminate the potential for conflict."
The National Mining Association (NMA), meanwhile, has no problems with the new rule. "We don’t oppose the policy that BLM has adopted," says Luke Popovich, NMA vice-president of external communications. "In our view, it isn’t anything harmful to mining. We only caution that the proof will be how they apply the policy on the ground."
The new, interim ROW rule will remain in place for two years with the possibility of a two-year extension. A comment period, open until July 26, will determine the shape of a permanent rule expected to take effect when the temporary version expires. "Our intent is to have a permanent rule in place," Brady says. "But you have to go through a proposed- and final-rule process to get there."
As part of the US Department of Interior, BLM administers public lands with a total area in excess of 100 million hectares, including more than eight million hectares in 11 western states with wind power potential. It has roughly 200 ROW applications pending for wind energy site testing. To date, 25 wind projects with a combined capacity of 437MW have been installed on BLM land in Arizona, California, Utah, Nevada and Wyoming. An additional 358MW has been approved.