Hydropower On-Site Evaluation Process (10)
On-Site Evaluation Process
10.1 - Site Visit
The site visit is essential to viewing the location(s) of the proposed activity: access roads and other planned infrastructure. Areas of proposed surface disturbance need to be flagged/staked in order to determine any additional environmental and cultural surveys, and whether NHPA Section 106 and NEPA Section 7 consultations will be required.
10.2 to 10.3 – Does the Project Require a FERC 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. Developers may obtain a preliminary permit from FERC which confers an exclusive right to study the project site for a period of three years prior to 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 preliminary permit and Site Plan development are not comprehensive; additional site evaluation considerations are relevant and discussed below in 10.4 to 10.11.
10.4 to 10.5 - Are there Potential Impacts to Biological Resources?
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 ILP process. If the developer is following FERC's ILP process then the fish habitat assessment is subsumed in the ILP process.
License Conditions and Recommendations Processes
Under sections 10(j) and 30(c) to the FPA, the U.S. Fish and Wildlife Service (FWS), the 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. 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. 16 USC 811.
State Fish and Wildlife Agencies
ESA Section 7 Consultation
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 with an evaluation on the likely effects of the action. (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 NEPA analysis.
10.6 to 10.7 - Are there Potential Impacts or Restrictions on Land Uses?
Preexisting, 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, developers should consider impacts on nearby airports, military lands, navigable waters, floodplains, wetlands, coastal zones, and Army Corp of Engineers (ACOE) managed structures. If the proposed project impacts these land uses, then further environmental review and/or permitting will be required.
10.8 to 10.9 - Are there Potential Water Quality Impacts?
Water quality of nearby surface and groundwater must be maintained within state and federal standards during construction and operation of the hydropower facility. 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 (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.
Waters of the United States
"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to 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 information on the ongoing effort to implement the EPA Clean Water Rule Website.
Under 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 40 CFR 230.3(o)(2)).
10.10 to 10.11 - Are there potential impacts to geological, soils or paleontological resources?
Projects may have the potential to impact geological, soils 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 agencies process for developing conditions under FPA section 4(e) and/or recommendations under FPA section 10(a). For projects exempted by FERC, the developer will follow the assessment processes described below beginning in 16: Geological Resource Assessment Process.
10.12 to 10.13 - Will the Project Create or Store Waste and/or Hazardous Materials?
The United States Environmental Protection Agency (EPA) is authorized to manage hazardous waste through the Resource Conservation and Recovery Act (RCRA). Projects dealing with discovery, storage or generating hazardous waste and/or materials must be evaluated. This overall evaluation includes examination of the use of above ground storage tanks and generation of hazardous waste. If the project will generate hazardous materials, then the developer may be required to obtain a permit or go through further environmental review.
10.14 - Other Considerations (Environmental Justice, Flood Plains, Etc)
While the above elements and narrative cover the most frequent considerations, there may be other necessary considerations. 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 website.
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.
Developers may also need to consider the presence of flood plains within or near the project location. Under 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 (NEPA). For example, the federal agency will be required to consider alternatives to avoid adverse effects and incompatible development in floodplains 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 site evaluation permits are needed 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?
Native American or tribal cultural issues may arise whether the proposed project will be located on or off reservations. Further environmental review will be 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. Additionally, Section 106 of 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.
10.19 to 10.20 - Are there Potential Impacts to Aesthetic Resources?
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 any such rivers will be impacted as a result of the project. If the project will impact a designated river, then further environment review and/or permitting may be required. It also may impede the developer's ability to get a license to construct transmission lines or other project works. Developers should also consult the applicable state laws dealing with aesthetic resources that may be impacted as a result of the project.
10.21 - Continue with Project
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