RAPID/Roadmap/10
Geothermal On-Site Evaluation Overview (10)
On-Site Evaluation Overview Process
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10.1 - Site Visit
The site visit is essential to viewing the location(s) of the proposed activity: access roads, drill pad locations, 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 National Historic Preservation Act (NHPA) Section 106 and National Environmental Policy Act (NEPA) Section 7 consultations will be required. The site visit also affords the opportunity to determine if lease stipulations can be modified, excepted, or waved.
This visit, as part of a pre-application or application process is the basis for the NEPA documentation necessary for the permit approval.
10.2 to 10.3 - 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.
Cultural Resource Assessment: 11
10.4 to 10.5 - Are There Potential Impacts to Biological Resources?
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.
Biological Resource Assessment Process: 12
10.6 to 10.7 - Are There Potential Impacts to Pre-Existing 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.
Land Use Assessment Process: 13
10.8 to 10.9 - Are There Potential Impacts to Waters of the United States?
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.
Water quality of nearby surface and groundwater must be maintained within state and federal standards during construction and operation of the power plant. Often both chemical limits and temperature standards are set to ensure safe environments for natural wildlife to thrive. Often state Departments of Public Health and Environment are responsible for discharge permits. Water quality issues will be addressed in environmental assessments (EA) and environmental impact statements (EIS) developed for compliance with the National Environmental Policy Act (NEPA).
NOTE: Readers should be aware of the recent Supreme Court decision in Sackett v. EPA and proposed rules on this matter and continue to monitor the issue at the state and national level. On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced the signing of a proposed rule to revise the definition of “Waters of the United States,” effectively revoking the Navigable Waters Protection Rule. The final rule was published on January 25, 2023 and became effective March 25, 2023. On April 12, 2023, a district court judge in the federal district of North Dakota issued a preliminary injunction of the WOTUS rule in 24 states, preventing the administration of the rule in those states. An additional two states were affected by a previous injunction of the rule, bringing the total number of states in which the rule is stayed to 26. Concurrent to the development of the WOTUS rule, the Supreme Court of the United States granted Certiorari in Sackett v. EPA. In the case, a dispute over the fill of a wetland, the Ninth Circuit Court of Appeals applied the significant nexus test to find that the wetland was covered by the Clean Water Act. The test used by the Court of Appeals, based on Supreme Court precedent, is largely codified by the Final Rule. The sole issue on appeal in Sackett was whether this significant nexus test was the correct test to apply for determining jurisdiction over wetlands or whether some other test should be used. On May 25, 2023, the Supreme Court rejected the significant nexus test. The Court held that federal jurisdiction over wetlands applies only to those wetlands that have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is demarcation between ‘waters’ and wetlands. In light of this decision the EPA and Department of the Army published a final rule in January 2023 which was revised in August 2023 to amend the following provisions: 2023 40 CFR 120.2(a)(1)(iii), (a)(3) through (5), (c)(2) and (6), and 33 CFR 328.3(a)(1)(iii), (a)(3) through (5), (c)(2) and (6).
A list of these revisions is provided below.
- 40 CFR 120.2(a)(1)(iii) and 33 CFR 328.3(a)(1)(iii): Removed the phrase “including interstate wetlands” from this provision. Made conforming edits to the regulatory text.
- 40 CFR 120.2(a)(3) and 33 CFR 328.3(a)(3): Removed the significant nexus standard from the tributaries provision. Made conforming edits to the regulatory text.
- 40 CFR 120.2(a)(4) and 33 CFR 328.3(a)(4): Removed the significant nexus standard from the adjacent wetlands provision. Made conforming edits to the regulatory text.
- 40 CFR 120.2(a)(5) and 33 CFR 328.3(a)(5): Removed the significant nexus standard and streams and wetlands from the provision for intrastate lakes and ponds, streams, or wetlands not otherwise identified in the definition. Made conforming edits to the regulatory text.
- 40 CFR 120.2(c)(2) and 33 CFR 328.3(c)(2): Revised the definition of “adjacent”. Note that the agencies recognize that revising the definition of adjacent creates redundancy in 40 CFR 120.2(a)(4) and 33 CFR 328.3(a)(4), which already include the requirement for a “continuous surface connection,” but deleting existing regulatory text to reduce redundancy is outside the scope of the agencies' determination in this rule that there is good cause under APA section 553(b)(B) to issue this final rule without prior proposal and opportunity for comment.
- 40 CFR 120.2(c)(6) and 33 CFR 328.3(c)(6): Removed the term “significantly affect” and its definition in its entirety.
Waters of the United States
In the states of Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, the new definition of "Waters of the United States" went into effect on March 25, 2023. Under the new rule, “Waters of the United States” are defined as:
- Waters which are:
- Currently used, or 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;
- The territorial seas; or
- Interstate waters;
- Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
- Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;
- Wetlands adjacent to the following waters:
- Waters identified in paragraph (a)(1) of this section; or
- Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters;
- Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.
Tributaries are those identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water 33 C.F.R. § 328.3(a)(3).
Similarly, wetlands are relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters; 33 C.F.R. § 328.3(a)(4). “Wetlands” are defined as “ those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” 33 C.F.R. § 328.3(c)(1).
In the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming, federal district courts have enjoined the EPA's new definition of Waters of the United States. Therefore, in these states, the old definition of "Waters of the United States" currently applies. This definition of "Waters of the United States" includes:
- Waters which are:
- Currently used, or 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;
- The territorial seas; or
- Interstate waters;
- Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
- Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;
- Wetlands adjacent to the following waters:
- Waters identified in paragraph (a)(1) of this section; or
- Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters;
- Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.
Tributaries are those identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water 33 C.F.R. § 328.3(a)(3).
"Waters of the United States" do not include:
- Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;
- Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;
- Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;
- Artificially irrigated areas that would revert to dry land if the irrigation ceased;
- Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
- Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
- Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and
- Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.
10.10 to 10.11 - Are There Potential Impacts to Air Quality?
Developers must evaluate the impact their project will have on air quality in order to comply with Clean Air Act requirements. Developers will be required to comply with state drafted rules used to implement the federal Clean Air Act at the state level. Air quality impacts of the proposed project must be evaluated to determine if air pollution may result. If the evaluation reveals that air pollution impacts will result from the project, then further examination and an air quality permit will be required.
Air Quality Assessment Process: 15
10.12 to 10.13 - Are There Potential Impacts to Geological Resources?
Geothermal projects may have impact on geology, soils, and paleontological resources. Due to this, the developer must assess the potential impacts the project may have to these resources. The site must be evaluated to determine if there are potential impacts on geological resources in the area as a result of the project. The Paleontological Resources Preservation Act (PRPA) outlines the requirements for obtaining a permit to collect paleontological resources on land controlled by the Bureau of Land Management.
Geological Resources Assessment Process: 16
10.14 to 10.15 - 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.
Aesthetic Resource Assessment: 17
10.16 to 10.17 - 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 storage or creation of waste and/or hazardous materials must be evaluated. This overall evaluation includes examination of the use of underground and above ground storage tanks, production of hazardous waste, and disposal of solid wastes produced as a result of the project. If the project will create or store waste and/or hazardous materials, then the developer may be required to obtain a permit or go through further environmental review.
Waste and Hazardous Material Assessment Process: 18
10.18 - Other Considerations (Environmental Justice, on or near NPS Land, 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. For more information, see the EPA Environmental Justice Webpage.
In addition, sites located near National Park Service managed land, including national monuments, may affect those protected resources. In such cases, developers may need to consult the National Park Service.
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