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A hydropower developer should conduct an onsite evaluation in order to identify site-specific resource protection concerns and requirements. The developer should contact the all appropriate managing agencies for further permit and regulation requirements that might be needed before the approval of any proposed activity.
Typical hydropower onsite evaluations include, but are not limited to, biological, ecological, paleontological, archaeological, geological, and hydrological. These evaluations can determine the proposed site's compatibility with the proposed project's operations and impacts. Project site development may be restricted due to the presence of historical artifacts and structures, sacred Indian grounds, threatened or endangered species, senior water rights, and special status species.
Overview of the permit or section being discussed.
==10.1 – Conduct Project Site Visit==
The appropriate state or local government entity or Indian tribe conducts a site visit to view the location(s) of the proposed project, including associated access roads, and ancillary structures. The appropriate government entity or Indian tribe flags/stakes areas of proposed surface disturbance in order to determine whether any additional environmental and cultural surveys are required.
==10.2 to 10.3 – Does the Project Require a Federal Energy Regulatory Commission Authorization?==
The [[Federal Energy Regulatory Commission]] (FERC) requires a detailed site evaluation for FERC licensed or exempted projects. For example, a detailed site evaluation would be required for any preliminary hydropower permit authorization, or for decommissioning a hydropower facility. A developer may obtain a preliminary permit from FERC, which confers an exclusive right to study the project site for a period of three (3) years before applying for a license. As part of the preliminary permit process, FERC requires applicants to submit a Study Plan containing a detailed site evaluation. However, the developer should also consider additional project impacts that may not be addressed in the Study Plan. For more information, see:
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/7-FD-e|FERC Hydropower Overview: <br>7-FD-e]]</span>
==10.4 to 10.5 – Are There Potential Impacts to Biological Resources?==
The developer must evaluate the impact the proposed project may have on biological resources in order to comply with the [[Federal Power Act]], [[Endangered Species Act]], and the [[National Environmental Policy Act]], among other regulations. For all hydropower projects located on federal land, additional biological resource assessments will need to be completed including those for migratory birds, bald and golden eagles, marine mammals, and endangered or threatened species. In addition, the fish habitat assessment process must be followed for all projects located on federal land unless the developer is using FERC's Integrated License Process (ILP). If the developer is following FERC's ILP process then the fish habitat assessment is considered in the ILP process.
Under sections 10(j) and 30(c) to the [[Federal Power Act]], the [[Fish and Wildlife Service|U.S. Fish and Wildlife Service]] (FWS), the [[National Oceanic and Atmospheric Administration (NOAA)|National Oceanic and Atmospheric Administration’s]] National Marine Fisheries Service (NOAA Fisheries), and state fish and wildlife agencies may issue conditions or recommendations, which FERC must consider, for the protection, mitigation, and enhancement of fish and wildlife that might be affected by a hydropower project. [[Federal Power Act|Federal Power Act (16 USC 803(j))]].
If a hydropower project may affect the passage of fish species present within the project area (or species planned for introduction into the area), section 18 of the FPA further authorizes the FWS and NOAA to prescribe mandatory fish passage improvements to ensure the safe, timely, and effective passage of fish. [[Federal Power Act|Federal Power Act (16 USC 811)]].
The presence of endangered species on the site for a project will result in further environmental evaluation being required. Under the [[Endangered Species Act]], Federal agencies are required to conduct a Biological Assessment to ensure that any actions they undertake do not jeopardize the existence of any listed species. If a listed species or critical habitat is likely to be affected, the agency must provide the [[Fish and Wildlife Service|U.S. Fish and Wildlife Service]] with an evaluation on the likely effects of the action. ([[Title 50 CFR 402 Interagency Cooperation - Endangered Species Act of 1973, as Amended|50 CFR 402]]). This is required for any federal actions that may significantly affect the quality of the human environment.
Biological evaluations may serve multiple purposes, but the primary role is to document an agency’s conclusions and the rationale to support those conclusions regarding the effects of their proposed actions on protected resources. Federal agencies may conduct this section 7 biological assessment as part of the [[National Environmental Policy Act]] analysis. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/12 (1)|Biological Resource Assessment Overview: 12]]</span>
==10.6 to 10.7 – Are There Potential Impacts or Restrictions on Land Uses?==
The developer must evaluate potential land use restrictions, as well as the impact the proposed project may have on land uses. Pre-existing, existing, and concurrent land uses at and surrounding the site are critical considerations in the early planning stages of the project. Federal and state law may prohibit or limit interference with certain land uses. For instance, a developer should consider impacts on nearby airports, military lands, navigable waters, floodplains, wetlands, coastal zones, and [[U.S. Army Corps of Engineers]] (USACE) managed structures. If the proposed project impacts land uses, then further environmental review and/or permitting may be required. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/13 (1)|Pre-existing Land Use Assessment Overview: 13]]</span>
==10.8 to 10.9 - Are There Potential Water Quality Impacts?==
The developer must evaluate the impact the proposed project may have on water quality in order to comply with the [[Clean Water Act]], among other regulations. Water quality of nearby surface and groundwater must be maintained within state and federal standards during construction and operation of the proposed project. Chemical limits, temperature standards, consumption and flow levels are set to ensure safe environments for natural wildlife to thrive. State Departments of Public Health and Environment are often responsible for discharge permits and water quality issues.
The [[Clean Water Act]] establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/14 (1)|Water Quality Overview: 14]]</span>
'''Waters of the United States'''
In 2015, EPA and USACE promulgated a rule modifying the definition of “waters of the United States.” Thirty-One states and other parties sought judicial review in multiple actions in Federal district courts and circuit courts of appeal, raising concerns about the scope and legal authority of the 2015 Rule. The Sixth Circuit stayed the 2015 Rule nationwide to restore the “pre-Rule regime, pending judicial review” (see [[Ohio, et al. v. EPA, Order of Stay]]). In light of the Sixth Circuit’s order, EPA and USACE continue to implement the [[Clean Water Act| CWA]] through the prior regulatory definition under [[Title 40 CFR 230 Definitions - Clean Water Act|40 CFR 230.3(s)]]; [[Title 33 CFR 328 Definition of the Waters of the United States|33 CFR 328]].
Complicating the issue further, however, are challenges to the Sixth Circuit’s jurisdiction to issue the preliminary injunction. On October 11, 2017, the Supreme Court held oral argument on the question of whether the Sixth Circuit has original jurisdiction to review challenges to the 2015 Rule. The Supreme Court could issue a decision resolving the question at any time.
On February 28, 2017, the President of the United States issued [[Executive Order 13778– Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule]]. The Executive Order directed EPA and USACE to issue a proposed rule rescinding or revising the 2015 Rule. On July 27, 2017, EPA and USACE proposed a new rule to rescind the 2015 Rule and replace it with the legal principles established prior to the 2015 Rule. In additional rulemaking, EPA and USACE are proposing that the new legal principles (IE: the legal principles established prior to the 2015 rule) not be implemented until two years after the publication date of the final rule to ensure that there is sufficient time to consider all the relevant factors involved. During this time, the agencies will continue to implement the previous regulatory definition of “waters of the United States” as they are currently doing under the Sixth Circuit's stay.
Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides up-to-date information on the [[Environmental Protection Agency - Clean Water Rule Website]].
Under [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material|40 CFR 230.3(o)(1)]], the term "waters of the United States" means:
:(i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
:(ii) All interstate waters, including interstate wetlands;
:(iii) The territorial seas;
:(iv) All impoundments of waters otherwise identified as waters of the United States under this section;
:(v) All tributaries, as defined in 40 CFR 230.3(o)(3)(iii), of waters identified in paragraphs 40 CFR 230.3(o)(1)(i) through (iii);
:(vi) All waters adjacent to a water identified in 40 CFR 230.3(o)(1)(i) through (v), including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
:(vii) All waters in 40 CFR 230.3(o)(1)(vii)(A) through (E) where they are determined, on a case-specific basis, to have a significant nexus to a water identified in 40 CFR 230.3(o)(1)(i) through (iii). The waters identified in each of paragraphs 40 CFR 230.3(o)(1)(vii)(A) through (E) are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in 40 CFR 230.3(o)(1)(i) through (iii). Waters identified in this paragraph shall not be combined with waters identified in 40 CFR 230.3(o)(1)(vi) when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under 40 CFR 230.3(o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
::(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
::(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
::(C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
::(D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
::(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
:(viii) All waters located within the 100-year floodplain of a water identified in 40 CFR 230.3(o)(1)(i) through (iii) and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in 40 CFR 230.3(o)(1)(i) through (v) where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs 40 CFR 230.3(o)(1)(i) through (iii). For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in 40 CFR 230.3(o)(1)(i) through (iii) or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in 40 CFR 230.3(o)(1)(vi) when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under 40 CFR 230.3(o)(1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material|40 CFR 230.3(o)(2)]]).
==10.10 to 10.11 - Are There Potential Impacts to Soils, Geological, or Paleontological Resources?==
The developer must evaluate the impact the proposed project may have on soils, geological, and paleontological resources. For hydropower projects, the process the developer will follow depends on whether the project will be licensed or exempted by FERC. For FERC licensed projects, the developer must follow the relevant land management agency’s process for developing conditions under the Federal Power act section 4(e) and/or recommendations under section 10(a). For projects exempted by FERC, the developer will follow the assessment processes described in:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/16 (1)|Geological Resource Assessment Overview: 16]]</span>.
==10.12 to 10.13 – Will the Project Generate, Treat, Store, or Dispose of Waste and/or Hazardous Materials?==
The developer must evaluate proposed project to determine if the project will generate, treat, store, or dispose of waste and/or hazardous materials. The [[United States Environmental Protection Agency]] is authorized to manage hazardous waste through the [[Resource Conservation and Recovery Act]]. The developer should consider the use of underground and aboveground storage tanks, production of hazardous waste, and disposal of solid wastes produced as a result of the project. If the project will generate, treat, store, or dispose of waste and/or hazardous materials, then the developer may be required to obtain a permit or go through further environmental review. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/18 (1)|Waste and Hazardous Material Assessment Overview: 18]]</span>
==10.14 - Consider Other Project Impacts==
Through an on-site evaluation, the developer should consider other proposed project impacts. While the above narrative covers the most frequent considerations, there may be other project impacts to floodplains, river corridors, environment justice concerns, etc. For example, the EPA has a policy of promoting environmental justice: involving the fair treatment and meaningful involvement of all people involved regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. In practice, this policy serves to ensure that minority and/or lower income communities are not disproportionately affected adversely by negative externalities of environmental projects. For example, constructing numerous waste facilities in a predominantly low-income community, where that community did not receive fair treatment or meaningful involvement in the process, would likely violate the EPA's policy of environmental justice. For more information, see the [[EPA - Environmental Justice webpage | EPA Environmental Justice website]].
The DOI ensures that America’s natural endowment – the lands and waters of the United States – is conserved for the benefit, use, and enjoyment of current and future generations. The DOI’s bureaus use the best available science, modern natural resource management techniques, technology and engineering, efficient decision-making processes, robust partnerships, and improved land use planning to ensure balanced stewardship and use of the public lands and its resources, including wildlife and fish species.(see [[DOI Strategic Plan 2018-2019]])
In addition, the [[United States Department of Interior]] has set forth an Environmental Justice Vision statement setting forth a goal, "To provide outstanding management of the natural and cultural resources entrusted to us in a manner that is sustainable, equitable, accessible, and inclusive of all populations" (see [[DOI Environmental Justice Strategic Plan]]). The plan prioritizes consideration of minority, low-income, and tribal populations.
A developer may also need to consider the presence of flood plains within or near the project location. Under [[Executive Order 11988 - Floodplain Management | Executive Order 11988]], each federal agency is required to take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health, and welfare, and to restore and preserve the values of floodplains. If a proposed project is located within a floodplain, then federal agencies are required to take specific actions during environmental review under the [[National Environmental Policy Act]]. For example, the federal agency will be required to consider alternatives to avoid adverse effects and incompatible development in floodplain areas.
==10.15 to 10.16 – Is the Project Subject to the FERC Integrated Licensing Process?==
If the hydropower project is subject to FERC’s Integrated Licensing Process then no additional federal site evaluation approvals are required beyond those referred to above. All other hydropower projects will need to complete resource assessments for tribal and cultural resources, and for aesthetic resources (discussed below).
==10.17 to 10.18 – Are There Potential Impacts to Tribes or Cultural Resources?==
The developer must evaluate the impact the proposed project may have on tribal and/or cultural resources in order to comply with the [[National Historic Preservation Act]] (NHPA), among other regulations. Native American or tribal cultural issues may arise whether the proposed project will be located on or off reservations. Further environmental review is necessary if the evaluation results in a discovery of a possible impact on Tribes and cultural resources.
During construction, the discovery of artifacts, and especially an Indian burial site, must be reported to the state historic preservation office, likely triggering additional regulatory involvement. Section 106 of [[National Historic Preservation Act | NHPA]] requires that all federal agencies take into account the effects of their actions on historic properties. Federal agencies must then provide the Advisory Council on Historic Preservation with an opportunity to comment on those actions. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/11|Cultural Resource Assessment Overview: 11]]</span>
==10.19 to 10.20 – Are There Potential Impacts to Aesthetic or Recreational Resources?==
The developer must evaluate the impact the proposed project may have on aesthetic and recreational resources in order to comply with the [[Wild and Scenic Rivers Act]], among other regulations. The [[Wild and Scenic Rivers Act]] was passed with the purpose to protect rivers of a particular scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values from impact on their free-flowing condition. The project site must be evaluated to determine if the project will impact any river designated for inclusion in the National Wild and Scenic Rivers System or authorized by Congress as a study river under Section 5(a) of the [[Wild and Scenic Rivers Act]]. The developer must evaluate the project site to determine if the project will impact any of these rivers. If the project impacts a designated river, then further environment review and/or approval may be required. For more information, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/17 (1)|Aesthetic and Recreational Resource Assessment Overview: 17]]</span>
The [[Federal Energy Regulatory Commission]] (FERC) cannot issue a license or exemption for the construction of a new hydropower project located ''on or directly affecting'' any designated river or congressionally authorized study river. The Wild and Scenic Rivers Act may also limit FERC’s authority to relicense an existing hydropower project or to license or exempt a project located below, above, or on a stream tributary to a designated river or congressionally authorized study river. [[Federal Power Act|16 U.S.C. §§ 1278(a)-(b)]].
For more information on FERC’s Wild and Scenic Rivers process, see:
<span class="btn btn-rapid btn-overview">[[RAPID/Roadmap/17-FD-b|FERC - Wild & Scenic Rivers: 17-FD-b]]</span>
The developer should also consult the applicable state laws dealing with aesthetic resources.
Paragraphs supporting the elements in the flowchart. Delineate section headers with "==" wiki text.
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[[Ohio, et al. v. EPA, Order of Stay]]; [[Executive Order 11988 - Floodplain Management | Executive Order 11988]]; [[EPA - Environmental Justice webpage|EPA Environmental Justice Website]]; [[DOI Environmental Justice Strategic Plan|United States Department of Interior - Environmental Justice Strategic Plan]]; [[Executive Order 11988 - Floodplain Management]]; [[DOI Strategic Plan 2018-2019]]; [[Environmental Protection Agency - Clean Water Rule Website]]
Enter multiple References, separated by semi-colons. Use standard wiki text for links.
[[Federal Power Act]]; [[Endangered Species Act]];
[[Clean Water Act]];
[[Clean Air Act]];
[[Resource Conservation and Recovery Act]];
[[National Historic Preservation Act]];
[[National Environmental Policy Act]];
[[Wild and Scenic Rivers Act]]; [[Title 50 CFR 402 Interagency Cooperation - Endangered Species Act of 1973, as Amended]]; [[Title 40 CFR 230 Definitions - Clean Water Act]]; [[Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material]]; [[Executive Order 13778– Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule]]; [[Title 33 CFR 328 Definition of the Waters of the United States|33 CFR 328]].
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