Solar On-Site Evaluation Overview (10)
On-Site Evaluation Overview Process
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 NHPA Section 106 and 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.
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.
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.
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 solar 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).
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?
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.
10.12 to 10.13 - Are There Potential Impacts to Geological Resources?
Solar 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.
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.
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.
10.18 - 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, developers may 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.
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