New US solar permitting challenges can be overcome

Following Executive Order (EO) 14315, “Ending Market Distorting Subsidies for Unreliable, Foreign-Controlled Energy Sources”, the Department of the Interior (DOI) issued a memorandum on 15 July 2025, “Departmental Review Procedures for Decisions, Actions, Consultations, and Other Undertakings Related to Wind and Solar Energy Facilities.” This clarifying guidance now requires wind and solar-related matters within DOI’s purview to be routed through three levels of departmental review. These include:

• Submission to the Office of the Executive Secretariat and Regulatory Affairs
• Subsequent review by the Office of the Deputy Secretary
• Final review by the Office of the Secretary

Among the memo’s covered items:

• Section 106 compliance and other cultural resource consultations
• Consultation and permits under the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act
• Biological assessments and biological opinions

Because the memo adds high-level review steps without a defined decision timeline, it may increase schedule uncertainty for wind and solar projects requiring DOI actions or consultations. These consultations have traditionally been performed from local field offices.

What it all means

If your project has a federal nexus, it may trigger federal environmental review and interagency consultation. These triggers may include:

• Development on or crossing federal land (e.g., Bureau of Land Management-managed land)
• Federal authorisation/right-of-way
• Federal funding
• Clean Water Act Section 404 permit from the U.S. Army Corps of Engineers for impacts to jurisdictional waters and wetlands
• The potential for take or impacts to federally listed species

Depending on the project’s impacts, this can include consultation with the DOI, most commonly through the U.S. Fish & Wildlife Service for Endangered Species Act compliance, and through DOI land-management bureaus when DOI is the authorising land manager. Section 106 review for historic and cultural resources is led by the applicable federal action agency in consultation with SHPO/THPO, tribes and other parties. DOI is typically involved only when it is the action agency or if it is managing the affected lands/resources.

The best approach is to avoid and minimise impacts to jurisdictional waters/wetlands, listed species, critical habitat and cultural resources. Reducing permitting and consultation scope is expected to lower the likelihood of additional federal review layers.

If impacts to sensitive resources are unavoidable and permitting/consultation is required, schedule uncertainty can increase due to agency coordination, information needs and consultation timelines. For projects requiring DOI authorisations or DOI-led review, additional departmental review steps may further affect timing.

This directive creates the high likelihood that projects that formerly required only routine federal reviews from the local office now face long delays in getting on calendars for reviews by highly placed agency officials.

Though the policy changes don’t completely forestall the possibility that projects could advance, there is still a higher risk that projects could have schedule delays or be cancelled altogether if developers do not minimise impacts and schedule consultation reviews appropriately.

Strategic risk opportunity and mitigation

With the policy now in place, teams should implement creative strategies to avoid triggering consultations and additional federal review wherever possible.

“Smart scheduling” is one such strategy. It starts with incorporating seasonal restrictions on tree clearing, vegetation removal and other activities within or adjacent to sensitive resources into the overall project schedule. Smart scheduling also starts with desktop screening to identify potential sensitive resources and to plan targeted field surveys to confirm which species are present and which vegetation communities may serve as habitat.

For example, if tree clearing is required, it should first be minimised and then reviewed to confirm it will not occur in known critical habitat or near a hibernacula or maternity roost. If that is the case, tree clearing should be scheduled during winter hibernation months to reduce or eliminate impacts on listed bat species.

Beyond vegetation clearing considerations, sites should be evaluated early to avoid or minimise impacts to streams and wetlands, cultural or historic resources, and threatened and endangered species. For instance, stream and wetland impacts can sometimes be limited to temporary impacts that avoid triggering additional federal review, or kept below the pre-construction notification thresholds for a Nationwide Permit. If the project can comply with Nationwide Permit conditions and remain below applicable thresholds, additional reviews may be avoided.

The impact of these regulatory hurdles can also be softened by working with engineering-procurement and construction (EPC) teams. This project delivery model emphasises close integration with environmental professionals to collaboratively design projects that are constructable while keeping impacts to sensitive resources within permissible limits.

Solar finds a way

Though solar energy projects are being slowed due to recent federal actions, the pathways for permitting success still are available. It just takes careful planning, strong collaboration and smart scheduling.

Alisson Chapin is department manager, environmental services, at Burns & McDonnell. Michael Downs is a staff environmental scientist at Burns & McDonnell.