Permitting utility-scale battery energy storage projects: lessons from California
The increasing mandates and incentives for the rapid deployment of energy storage are resulting in a boom in the deployment of utility-scale battery energy storage systems (BESS). In the first installment of our series addressing best practices, challenges and opportunities in BESS deployment, we will look at models and recommendations for land use permitting and environmental review compliance for battery energy storage projects with a particular focus on California, which is leading the nation in deploying utility-scale battery storage projects.
Land use permitting and entitlement
There are three distinct permitting regimes that apply in developing BESS projects, depending upon the owner, developer, and location of the project.
Utility-Sponsored Projects – Public Utilities Commission
BESS projects developed or owned by the state’s investor-owned utilities are subject to California Public Utilities Commission (CPUC) jurisdiction under General Order (GO) 131-D. GO 131-D governs permitting for utility-owned infrastructure including the potential need for a Certificate of Public Necessity and Convenience (CPCN) or Permit to Construct (PTC) and related environmental review pursuant to the California Environmental Quality Act (CEQA). For BESS projects approved to date, the utilities have invoked an exemption from GO 131-D qualifying such projects as “distribution” facilities falling below applicable 50 MW and 50 kV thresholds, thereby avoiding CPCN and PTC compliance and California Environmental Quality Act (CEQA) review and significantly streamlining permitting.
Private Land Projects – State and Local Government Agencies
For BESS projects developed or owned by private entities, permitting jurisdiction is dependent upon the location of the project, typically either on private, federal or state land, and governed by the applicable governmental agency with jurisdiction over that property. The majority of BESS projects developed to date are located on private land – typically near substation infrastructure and/or generating facilities – and subject to the applicable county or city zoning and land use ordinances and, if necessary, associated CEQA review.
Co-locating BESS facilities with the solar or wind generating source has proven to streamline the permitting process. In such circumstances, several California counties have found BESS projects to constitute an accessory use to the associated energy generation facility, thereby bundling the two projects together, even where a BESS project may be added subsequent to the development of the solar or wind facility. In other jurisdictions, BESS projects have been interpreted as falling within permitted uses for electrical substations and transmission and distribution facilities, thereby avoiding discretionary review; or, alternatively, BESS projects may be interpreted as allowed as conditional uses for similar facilities, requiring a conditional or special use permit and triggering CEQA review.
Federal Public Lands – Federal Government Agencies
For those projects located on federal or state land, permitting will fall under the jurisdiction of the applicable agency and its associated permitting regime – for example, the Federal Land Policy and Management Act’s Right of Way (ROW) process for projects falling under Bureau of Land Management (BLM) jurisdiction. As with BESS projects located on private land, BLM will typically bundle the consideration of a BESS facility with an associated solar or wind facility in an initial ROW Grant, or, if the BESS facility is added subsequent to the generation facility, treat it as an amendment to the ROW Grant…
