RAPID/Roadmap/10 (3)
Solar 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 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.
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 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).
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 are developing a proposed rule to amend the rule for the “Waters of the United States” definition. The proposed rule is expected to be published in fall 2023. Readers should continue to monitor the issue at the state and national level.
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:
- 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;
- Tributaries;
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands. 33 C.F.R. § 328.3(a).
Tributaries must be relatively permanent, standing or continuously flowing bodies of water; or, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of downstream waters that are subject to the Clean Water Act. 33 C.F.R. § 328.3(a)(3).
Similarly, Wetlands must be relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to jurisdictional waters; or, either alone or in combination with similarly situated waters in the region, must significantly affect the chemical, physical, or biological integrity of waters subject to the Clean Water Act. 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).
For both tributaries and wetlands, “Significantly affect” means “A material influence on the chemical, physical, or biological integrity of waters” subject to the Clean Water Act. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters, the following factors must be assessed:
- Contribution of flow;
- Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
- Retention and attenuation of floodwaters and runoff;
- Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
- Provision of habitat and food resources for aquatic species located in waters subject to the Clean Water Act.
In addition, the following factors must be considered:
- The distance from a water subject to the Clean Water Act;
- Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
- The size, density, or number of waters that have been determined to be similarly situated;
- Landscape position and geomorphology; and
- Climatological variables such as temperature, rainfall, and snowpack.
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:
- 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;
- Tributaries;
- 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).
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.
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, 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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