Bulk Transmission On-Site Evaluation Overview (10)
Typical transmission on-site evaluations include, but are not limited to, biological, ecological, paleontological, archaeological, geological, hydrological, and aesthetic. 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, and special status of species, among other factors.
On-Site Evaluation Overview Process
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 – 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 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:
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 Endangered Species Act, and the National Environmental Policy Act, among other regulations. 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 U.S. 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. For more information, see:
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 regulation 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:
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 (CWA), 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. Often both chemical limits and temperature standards are set to ensure safe environments for natural wildlife to thrive.
The CWA 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:
The 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
In 2015, United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (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 CWA through the prior regulatory definition under 40 CFR 230.3(s); 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 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 Air Quality?
The developer must evaluate the impact the proposed project may have on air quality in order to comply with the Clean Air Act, among other regulations. Developers are required to comply with state drafted rules used to implement the federal Clean Air Act at the state level. The developer must evaluate the proposed project’s impacts on air quality to determine if air pollution may result. If the evaluation reveals that air pollution impacts will result from the project, then the project may require further examination and an air quality permit. For more information, see:
10.12 to 10.13 – 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. The Paleontological Resources Preservation Act outlines the requirements for obtaining a permit to collect paleontological resources on land controlled by the Bureau of Land Management. For more information, see:
10.14 to 10.15 – 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. It also may impede the developer's ability to get a license to construct transmission lines or other project works. The developer should also consult the applicable state laws dealing with aesthetic resources. For more information, see:
10.16 to 10.17 – 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:
10.18 – 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 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.
A developer 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. For example, the federal agency will be required to consider alternatives to avoid adverse effects and incompatible development in floodplain areas.
10.19 – Continue with Project
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- Endangered Species Act
- Clean Water Act
- Clean Air Act
- National Environmental Policy Act
- National Historic Preservation Act
- Paleontological Resources Preservation Act
- Resource Conservation and Recovery Act
- Title 50 CFR 402 Interagency Cooperation - Endangered Species Act of 1973, as Amended
- Executive Order 11988 - Floodplain Management
- Wild and Scenic Rivers Act
- Title 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material
- Title 40 CFR 230 Definitions - Clean Water Act
- 33 CFR 328
- Executive Order 13778– Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States Rule