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Under NEPA, a “lead agency” is the agency preparing NEPA documentation or is the agency that has taken primary responsibility for coordinating the NEPA process. If FERC is the lead agency, then FERC will coordinate the NEPA process. This would typically be the case when any FERC authorization (permit or exemption) is required to develop or decommission a non-federal hydropower project. Under the Traditional Licensing Process, FERC’s typical NEPA process will be followed. Under the Alternative Licensing Process and the Integrated Licensing Process, the NEPA process is combined with the FERC licensing process. For more information, see:
 
Under NEPA, a “lead agency” is the agency preparing NEPA documentation or is the agency that has taken primary responsibility for coordinating the NEPA process. If FERC is the lead agency, then FERC will coordinate the NEPA process. This would typically be the case when any FERC authorization (permit or exemption) is required to develop or decommission a non-federal hydropower project. Under the Traditional Licensing Process, FERC’s typical NEPA process will be followed. Under the Alternative Licensing Process and the Integrated Licensing Process, the NEPA process is combined with the FERC licensing process. For more information, see:
  
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/7-FD-e|FERC Hydropower Overview: <br>7-FD-e]]</span>
+
<span class="btn btn-rapid btn-fed">[[RAPID/Roadmap/9-FD-i|FERC NEPA Review: <br>9-FD-i]]</span>
  
  

Latest revision as of 13:34, 13 September 2019

RAPIDRegulatory and Permitting Information Desktop Toolkit
My Projects

Hydropower Environmental Review Overview (9)

Information current as of 2019
A hydropower developer may need to comply with federal and state environmental review processes. A typical hydropower project will raise environmental issues that require permitting and/or regulatory approval from federal and state agencies. The environmental law in the United States is governed by federal law that is administered by both federal and state agencies, as well as state environmental laws that either complement federal law or go above and beyond it.


The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. NEPA establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within the federal agencies. A developer will be required to go through the NEPA process if the project involves a "major federal action." The level and scope of the NEPA review will vary depending on the nature of the project and to what degree the federal government will be involved. Some actions and projects will receive a categorical exclusion while others may require a full Environmental Impact Statement (EIS). NEPA review is handled by a "lead agency." A “lead agency" is the federal agency responsible for writing the main NEPA document(s) and coordinating with any other federal, state, or tribal agencies.

For many hydropower projects, the lead agency will be the Federal Energy Regulatory Commission (FERC). However, under certain circumstances the lead agency will be the Bureau of Reclamation (BOR), the U.S. Army Corps of Engineers (USACE), or a federal land management agency such as the United States Forest Service (USFS) or the Bureau of Land Management (BLM). A hydropower project may be required to undergo more than one NEPA review, each with a different lead agency. This would occur if, for example, USACE does not sign on as a cooperating agency for FERC review and instead completes a separate NEPA review for Section 404 permitting. An approach such as this would produce two distinct NEPA documents each potentially incorporating the contents of the other by reference.

A “cooperating agency” means any federal, state, local, or tribal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) for legislation or other major federal action significantly affecting the quality of the human environment. For example, where FERC is the lead agency for purposes of completing the NEPA process for hydropower development on federal land, other federal agencies with jurisdiction or special expertise take on the role of a cooperating agency.

To comply with federal environmental regulation, the developer is also required to comply with state environmental laws. Many states have adopted their own environmental laws and regulations.

Potential environmental impacts from hydropower development that may occur during the site evaluation, construction, and operation phases of the project include:

  • Vehicle emissions, volatile organic compound (VOC) releases from storage and transfer of vehicle/equipment fuels, carbon monoxide, nitrogen oxides and particulates from blasting activities, and fugitive dust from clearing, grading, excavating, and vehicle and equipment traffic;
  • Noise disturbances from drilling, blasting, vehicle traffic, turbine, generator, and transformer can impact migration, feeding, and reproduction patterns in species;
  • Direct and indirect impacts to cultural resources from surface disturbances or excavation, erosion, sedimentation, increased human access can increase exposure to contaminants, and interfere with behavioral activities of species;
  • Direct and indirect impacts to ecological resources (vegetation, wildlife, aquatic biota and their habitats) from introduction of invasive species from vehicle traffic, fugitive dust, erosion and runoff from excavation can limit a plant’s ability to photosynthesize, and impact habitats. Construction of roads, canals, pipelines, and transmission rights-of-way can fragment wildlife habitats affecting feeding and reproduction behaviors. Construction of intakes and dams can significantly alter the river leading to habitat loss and degradation for aquatic species; and
  • Water quality could also be affected by activities that cause soil erosion, including construction of the intake and dam, which could increase turbidity and suspended sediment transport.
Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.



Environmental Review Overview Process


9.1 – Does the Project Require a Major Federal Action?

For the National Environmental Policy Act (NEPA) to be triggered there must be a "major federal action" (action).

Major federal actions tend to fall within one of the following categories:

  1. Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.
  2. Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.
  3. Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.
  4. Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.

See 40 C.F.R. § 1508.18 Major Federal Action.

Major federal actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals 40 C.F.R. § 1506.8, 40 C.F.R. § 1508.17. Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et seq., with no federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions.

In general, NEPA will be triggered if the project is on federal land, the federal government owns the mineral estate, the project receives federal funding or support, or if a federal permit is required. Within the context of hydropower development, NEPA will be triggered if the project requires an authorization from Federal Energy Regulatory Commission (FERC), the discharge of dredge or fill material into waters of the United States, a Lease of Power Privilege for generating hydropower on a Bureau of Reclamation (BOR) managed conduit or dam, or a right-of-way on federal lands outside an established FERC project boundary.

9.2 to 9.3 – Is Federal Energy Regulatory Commission the Lead Agency for the Major Federal Action?

Under NEPA, a “lead agency” is the agency preparing NEPA documentation or is the agency that has taken primary responsibility for coordinating the NEPA process. If FERC is the lead agency, then FERC will coordinate the NEPA process. This would typically be the case when any FERC authorization (permit or exemption) is required to develop or decommission a non-federal hydropower project. Under the Traditional Licensing Process, FERC’s typical NEPA process will be followed. Under the Alternative Licensing Process and the Integrated Licensing Process, the NEPA process is combined with the FERC licensing process. For more information, see:

FERC NEPA Review:
9-FD-i


9.4 to 9.5 – Is the U.S. Army Corps of Engineers the Lead Agency for the Major Federal Action?

If U.S. Army Corps of Engineers (USACE) is the lead agency, then it will coordinate the NEPA process. This would typically be the case for USACE issuance of a Section 404 permit for the discharge of dredge or fill material into waters of the U.S. For more information, see:

U.S. Army Corps of Engineers - NEPA Review:
9-FD-k

9.6 to 9.7 – Is the Bureau of Reclamation the Lead Agency for the Major Federal Action?

If the Bureau of Reclamation (BOR) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the BOR executes a Lease of Power Privilege for a non-FERC licensed project. 43 U.S.C. § 485h (c).

Bureau of Reclamation - NEPA Review:
9-FD-j

9.8 to 9.9 – Is the Department of Defense the Lead Agency for the Major Federal Action?

If the United States Department of Defense (DOD) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the DOD executes an Enhanced Use Lease for development of a renewable energy project on a military reservation or if the DOD grants a right-of-way for a transmission line outside of the FERC project boundary. For more information, see:

Department of Defense - NEPA Review:
9-FD-f

9.10 to 9.11 – Is the Bureau of Land Management the Lead Agency for the Major Federal Action?

If the Bureau of Land Management (BLM) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the BLM grants a right-of-way for a transmission line outside of the FERC project boundary. If the BLM decides to complete its own NEPA review, BLM may seek to incorporate any NEPA review completed by FERC when authorizing the project. For more information, see:

Bureau of Land Management - NEPA Review:
9-FD-a

9.12 to 9.13 – Is the U.S. Forest Service the Lead Agency for the Major Federal Action?

If the United States Forest Service (USFS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the USFS grants a right-of-way for a transmission line outside of the FERC project boundary. If the USFS decides to complete its own NEPA review, USFS may seek to incorporate any NEPA review completed by FERC when authorizing the project. For more information, see:

United States Forest Service - NEPA Process:
9-FD-g

9.14 to 9.15 – Is the U.S. Fish and Wildlife Service the Lead Agency for the Major Federal Action?

If the United States Fish and Wildlife Service (FWS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the FWS grants a right-of-way for a transmission line outside of the FERC project boundary. If the FWS decides to complete its own NEPA review, FWS may seek to incorporate any NEPA review completed by FERC when authorizing the project. For more information, see:

U.S. Fish and Wildlife Service - NEPA Review:
9-FD-l

9.16 to 9.17 – Is the National Park Service the Lead Agency for the Major Federal Action?

If the National Park Service (NPS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the NPS grants a right-of-way for a transmission line outside of the FERC project boundary. If the NPS decides to complete its own NEPA review, NPS may seek to incorporate any NEPA review completed by FERC when authorizing the project. For more information, see:

National Park Service - NEPA Review:
9-FD-m

9.18 – Contact Other Federal Agencies for NEPA Review

If another federal agency is the lead agency for the major federal action then the developer will be required to contact that agency for its NEPA policies and procedures.

9.19 to 9.20 – Has an On-Site Evaluation Been Conducted?

The on-site evaluation process is intended to walk the developer through all of the required "environmental" considerations of a typical environmental review under NEPA. For more information, see:

On-Site Evaluation Overview: 10

9.21 – Initiate State Environmental Review

Most states have passed state environmental laws and regulations. Some states have an all-encompassing environmental review process such as the California Environmental Quality Act process, while other states consider only certain issues.

Alaska

Alaska does not have a state specific environmental review process.

Arkansas

Arkansas does not have a state specific environmental review process.

California

In California, a hydropower project is subject to review pursuant to the California Environmental Quality Act. For more information, see:

State Environmental Review:
9-CA-a

Colorado

Colorado does not have a state specific environmental review process.

Illinois

Illinois does not have a state specific environmental review process.

Indiana

Indiana has a state specific environmental review process, but it only applies to state initiated projects and state funded projects. For more information on State Environmental Policy Act, but this act does not apply to state agencies in the Indiana Environmental Policy Act, see: I.C. § 13-2-4 and I.A.C. § 326-16.

Iowa

In Iowa, a hydropower developer may choose to comply with the state’s optional environmental process regulated by the Iowa Department of Natural Resources (IDNR). The developer may send a request for an environmental review to the IDNR, and IDNR will conduct an environmental review. The developer should include any pertinent details about the project in the request. More information on Iowa's developer-initiated environmental review process can be found on IDNR's Environmental Review for Natural Resources Website.

Kentucky

Kentucky does not have a state specific environmental process.

Louisiana

Louisiana does not have a state specific environmental review process.

Minnesota

In Minnesota, a hydropower project is subject to review pursuant to the Minnesota Environmental Policy Act. The scope of the environmental review depends on the size of the project and the lead agency in charge. For more information, see:

State Environmental Review:
9-MN-a

Mississippi

Mississippi does not have a state specific environmental review process

Missouri

Missouri does not have a state specific environmental review process. However, the Missouri Department of Conservation may review and provide comments on a proposed project under NEPA, as well as other federal laws and programs, such as the Fish and Wildlife Coordination Act, the Endangered Species Act, and the Clean Water Act. The Missouri Department of Natural Resources also participates in the NEPA process. Both agencies are able to assist developers in the selection of a project site.

New York

In New York, a hydropower project may be subject to review pursuant to the State Environmental Quality Review Act. For more information, see:

State Environmental Review:
9-NY-a

North Dakota

North Dakota does not have a state specific environmental review process.

Ohio

Ohio does not have a state specific environmental review process.

Pennsylvania

Pennsylvania does not have a state specific environmental review.

Tennessee

Tennessee does not have a state specific environmental review.

Vermont

Vermont does not have a state specific environmental review process.

Washington

In Washington, a hydropower project is subject to review pursuant to the Washington State Environmental Policy Act. For more information, see:

State Environmental Review Overview:
9-WA-a

West Virginia

West Virginia does not have a state specific environmental review process.

Wisconsin

In Wisconsin, a hydropower project is subject to review pursuant to the Wisconsin Environmental Policy Act. 1 Wis. Stat. § 1.11. For more information, see:

State Environmental Review:
9-WI-a







Edit Federal Energy Regulatory Commission
Regional Office Hydropower Contacts Visit Website


Edit U.S. Army Corps of Engineers
Section 404 Regulatory Contacts Visit Website


Edit U.S. Army Corps of Engineers
Section 408 Regulatory Contacts Visit Website


Edit Bureau of Reclamation
Hydropower Program: Power Resources Office Directory Visit Website






Edit USFS
Forest Service Organizational Directory Visit Website