Hydropower On-Site Evaluation Overview (10)
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.
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 – 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:
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 U.S. Fish and Wildlife Service (FWS), 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 U.S.C. § 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 (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 U.S. Fish and Wildlife Service with an evaluation on the likely effects of the action. (50 C.F.R. § 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:
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:
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:
Waters of the United States
"Waters of the United States" is defined by regulation under the Clean Water Rule as developed by the United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE). “Waters of the United States” is defined to include:
- The territorial seas, and 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;
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands. 33 C.F.R. § 328.3(a).
Tributaries must be perennial or intermittent within a typical year, which the rule defines as a year "when precipitation and other climatic variables are within the normal periodic range for the geographic area of the applicable aquatic resource based on a rolling thirty-year period." 33 C.F.R. § 328.3(c)(13).
"Waters of the United States" do not include:
- Waters or water features that are not identified in paragraph (a)(1), (2), (3), or (4) of this section;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
- Diffuse stormwater run-off and directional sheet flow over upland;
- Ditches that are not waters identified in paragraph (a)(1) or (2) of this section, and those portions of ditches constructed in waters identified in paragraph (a)(4) of this section that do not satisfy the conditions of paragraph (c)(1) of this section;
- Prior converted cropland;
- Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
- Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) of this section;
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
- Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
- Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
- Waste treatment systems. 33 C.F.R. § 328.3(b).
Developers should be aware of ongoing litigation on this matter and continue to monitor the issue at the state and national level. For example, the state of Colorado won a preliminary injunction preventing the new WOTUS definition going into effect in the state. The EPA provides up-to-date information on the Environmental Protection Agency - Clean Water Rule Website.
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:
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:
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 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.
10.15 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:
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:
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. 16 U.S.C. §§ 1278(a)-(b).
For more information on FERC’s Wild and Scenic Rivers process, see: FERC - Wild & Scenic Rivers: 17-FD-b
The developer should also consult the applicable state laws dealing with aesthetic resources.
10.21 – Continue with Project
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- Federal Power Act, 16 U.S.C. §§ 791a-828c
- Endangered Species Act, 16 U.S.C. §§ 1531-1544
- Clean Water Act, 33 U.S.C. §§ 1251-1387
- Resource Conservation and Recovery Act. 42 U.S.C. §§ 6901-6992k
- National Historic Preservation Act, 54 U.S.C. §§ 300101-307108
- National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m
- Wild and Scenic Rivers Act, 16 U.S.C. §§1271-1287
- 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