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Hydropower Pre-Existing Land Use Assessment Overview (13)

Information current as of 2019
A hydropower developer should consider the pre-existing land uses of the proposed project site. Pre-existing land uses at and surrounding the site are critical considerations in the early planning stages of the project. Federal and state law may prohibit interference with certain pre-existing land uses. Hydropower developers should consider project impacts to U.S. Army Corps of Engineers managed structures, military lands, navigable waters, nearby airports and, whether the project will raise any state land issues.



Pre-Existing Land Use Assessment Overview Process

13.1 – Review Project Location

The developer must review the project location to determine if there are pre-existing uses of the land that may be impacted as a result of the project.

13.2 to 13.3 – Will the Project Require Modification to U.S. Army Corps of Engineers Managed Structures?

The developer should consider whether the proposed project would require a modification to a U.S. Army Corps of Engineers (USACE) managed structure. Of primary concern will be whether the project will require alterations to, or temporary or permanent occupancy or use of an USACE managed civil works project. If the proposed project will alter or utilize an USACE structure the developer must obtain Section 408 authorization under the Rivers and Harbors Act of 1899. In addition, any hydropower facility on an USACE structure must complete the Federal Energy Regulatory Commission (FERC) licensing process. For more information, see:

U.S. Army Corps of Engineers Section 408 Authorization:
7-FD-u

13.4 to 13.5 – Will the Project Be On or Adjacent to Military Lands?

The developer should consider whether the project will be located on or adjacent to military lands or installations. The Sikes Act authorizes the United States Department of Defense (DOD) to carry out a program for the conservation and rehabilitation of natural resources on military installations. The developer should consult the Integrated Natural Resources Management Plan (INRMP) if the proposed project will be on military land.

In addition, the military engages local governments and landowners for areas adjacent to military based to develop land use restrictions suitable to the purposes of the military installation. For projects adjacent to military land, the developer should consult the relevant DOD Joint Land Use Study, local land use plans, and private land use agreements. For more information, see:

Military Land Evaluation:
13-FD-b

13.6 to 13.7 - Will the Project Have a Substantial Aeronautical Impact?

The developer must consider any impact the project may have to nearby airports. Developers should consult with local airports to determine whether the project will have any direct or indirect effects on nearby flyways.

Generally, construction or alteration projects that include objects 200 feet above ground level (or higher) require developers to submit notice of the project to the Federal Aviation Administration (FAA). The FAA will evaluate the project based on obstruction standards and other factors in order to determine whether the construction or alteration will have a substantial aeronautical impact. Even where the FAA determines that there is no hazard to air navigation, they may include conditional provisions, limitations necessary to minimize potential problems, lighting/marking recommendations, and/or supplemental notice requirements.

For a full description of the relevant considerations and applicable processes, see

Aeronautical Considerations:
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13.8 to 13.9 – Will the Project Impact State Coastal Lands?

A developer may need coastal zone approval for projects that have the potential to impact state coastal zones from states that have programs that comply with the federal Coastal Zone Management Program.

The federal Coastal Zone Management Program established by the Coastal Zone Management Act (CZMA) of 1972 is a voluntary state-federal partnership, which encourages states to adopt their own management programs in order to meet the federal goals of protection, restoration, and appropriate development of coastal zone resources. 15 CFR Part 930, Subpart D; 16 U.S.C. § 1456(c)(3)(A). The CZMA applies to projects located within the state’s coastal areas and to projects located outside of the state’s coastal areas that are reasonably likely to affect the state’s coastal resources or coastal land and water uses. See 15 CFR § 930.11. The CZMA defines “coastal zone” as “the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of State title and ownership[.]” 16 U.S.C. § 1453(1).

A state may also require additional state coastal land approvals.

Alaska

In Alaska, a hydropower developer does not need specific coastal zone approval for projects that have the potential to impact state coastal zones. However, a developer may need a Best Interest Finding from the Alaska Department of Natural Resources and/or a Land Use Permit from Alaska Division of Mining Land and Water. See 13.12 to 13.13.

Arkansas

Arkansas does not have coastal lands within the state.

California

In California, a hydropower developer may need multiple state coastal land approvals for projects that have the potential to impact state coastal zones. A developer may need to obtain Coastal Development Permit from the California Coastal Commission or the California Energy Commission. A developer may also need to comply with the federal consistency provisions of the Coastal Zone Management Act. For more information, see:

State Coastal Zone Land Use Assessment Overview:
13-CA-a

Colorado

Colorado does not have coastal lands within the state.

Illinois

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Indiana.

Iowa

Iowa does not have coastal lands within the state.

Kentucky

Kentucky does not have coastal lands within the state.

Louisiana

In Louisiana, a hydropower developer may need a Coastal Use Permit (“CUP”) from the Louisiana Department of Natural Resources (LaDNR) or appropriate local authority before initiating construction of a project that falls within a coastal zone Louisiana Department of Natural Resources – Coastal Use Permit Webpage. Under the State and Local Coastal Resources Management Act projects requiring right-of-ways across coastal zones for construction and siting transmission may also require a CUP. For more information, see:

Coastal Use Permit:
13-LA-b

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Missouri.

New York

In New York, a hydropower developer may need a Coastal Zone Consistency Certification from the New York Department of State if the proposed project is located within or may affect a New York coastal area. For more information, see:

Coastal Zone Consistency Certification:
13-NY-c

North Dakota

North Dakota does not have coastal lands within the state.

Ohio

In Ohio, a hydropower developer may need a Coastal Zone Consistency Certification to the Ohio Department of Natural Resources for projects located within, or that may affect, an Ohio coastal zone, and that involves federal activities, federal licenses, or permit, and/or federal assistance programs. For more information, see:

Coastal Zone Consistency Certification:
13-OH-c

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding coastal lands regulation for hydropower development in Pennsylvania.

Tennessee

Tennessee does not have coastal lands within the state.

Vermont

Vermont does not have coastal lands within the state.

Washington

In Washington, a hydropower developer may need a Coastal Zone Certificate of Consistency from the Washington Department of Ecology for developments located within Washington’s coastal counties that involve federal activities, federal licenses or permits, or federal programs. For more information, see:

Coastal Zone Consistency Certification:
13-WA-c

West Virginia

West Virginia does not have coastal lands within the state.

Wisconsin

In Wisconsin, a hydropower developer may need a Coastal Zone Consistency Certification from the Wisconsin Coastal Management Council for projects that 1) involve federal activities, federal licenses or permits, and federal assistance programs, and 2) are located within one of Wisconsin’s coastal zones or have an impact on Wisconsin’s coastal resources. For more information, see:

Coastal Zone Consistency Certification:
13-WI-c

13.10 to 13.11 – Will the Project Impact State Wetlands?

A developer may need to obtain approval from the state for projects that impact freshwater, tidal, or other wetlands in the state.

Alaska

In Alaska, a hydropower developer does not need specific wetland approval for projects that have the potential to impact state wetlands. However, a developer may need a Best Interest Finding from the Alaska Department of Natural Resources and/or a Land Use Permit from Alaska Division of Mining Land and Water. See 13.12 to 13.13.

Arkansas

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Arkansas.

California

In California, the State Water Resources Control Board conducts state-level wetland regulation through California’s 401 Water Quality Certification program. Therefore, a developer may need a 401 Water Quality Certification for projects near wetlands, because the state definition of waters includes wetlands. For more information, see:

401 Water Quality Certification:
14-CA-d

Colorado

In Colorado, the Department of Public Health and Environment conducts state-level wetland regulation through Colorado's 401 Water Quality Certification program. Therefore, a developer may need a 401 Water Quality Certification for projects near wetlands, because the state definition of waters includes wetlands. CRS § 25-8-103(19); 5 CCR § 1002-31.27; 5 CCR § 1002-31.5(50). For more information, see:

401 Water Quality Certification:
14-CO-d

Illinois

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Illinois.

Indiana

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Minnesota.

Mississippi

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Mississippi.

Missouri

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Missouri.

New York

In New York, a hydropower developer may need a Freshwater Wetlands Permit and/or a Tidal Wetlands Permit from the New York State Department of Environmental Conservation for new hydroelectric facilities, transmission extension projects, and any other project that may disturb a protected state wetland or adjacent area. For more information, see:

Wetland Use Assessment Overview:
13-NY-a

North Dakota

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in North Dakota.

Ohio

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Ohio.

Pennsylvania

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Tennessee.

Vermont

In Vermont, a hydropower developer may need a Wetland Permit any project that disturbs “a significant wetland or its associated buffer zone.” For more information, see:

Wetland Permit:
13-VT-d

West Virginia

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have state specific content regarding wetland regulation for hydropower development in Wisconsin.

13.12 to 13.13 – Will the Project Impact Raise Any Additional Pre-existing State Land Use Issues?

A developer must consider the location and land use designations on certain state land before constructing a project. A state may require additional state land use approvals regarding a number of pre-existing land features. For example, a state may require approval for projects that may impact state floodplains, dunes, conservation districts, shorelines, and river corridors.

Alaska

In Alaska, a hydropower developer may need a Land Use Permit from the Alaska Department of Natural Resources’s Division of Mining, Land and Water (DMLW) for project that may impact state shorelands, tidelands, and submerged lands. In addition, a developer may need a Best Interest Finding from DMLW before developing on state land. For more information, see:

Additional Pre-existing State Land Use Assessment Overview:
13-AK-a

Colorado

In Colorado, a hydropower may need approval from certain municipal and local land use planning commission for projects that may impact flood control, stream flow or state wetlands. For more information, see:

Land Use Planning:
1-CO-a

Vermont

In Vermont, a hydropower developer may need a Flood Hazard and River Corridor Permit for projects located in a flood hazard area or river corridor of a municipality that is exempted from municipal regulation. Flood Hazard Area and River Corridor Rule, CVR 12-030-024 § 29-103(a)(1). In addition, a developer may need a Lake Encroachment Permit from the Vermont Agency of Natural Resources for any encroachment beyond the mean water level of a lake or pond. For more information, see:

Additional Pre-Existing State Land Use Assessment Overview:
13-VT-a

Washington

In Washington, a hydropower developer may need a Shoreline Substantial Development Permit, a Shoreline Conditional Use Permit, a Shoreline Variance, or Shoreline Exemption for projects that interfere with state shorelines or are located near marine waters, streams, lakes, wetlands, or floodplains. For more information, see:

Additional Pre-existing State Land Use Assessment Overview:
13-WA-a

13.14 to 13.15 – Will the Project Be Within Federal Energy Regulatory Commission Jurisdiction?

If the project is licensed by the Federal Energy Regulatory Commission (FERC), the process for authorizing the project to obstruct or alter a navigable water of the United States under Section 10 of the Rivers and Harbors Act of 1899 is completed under FERC supervision as a part of the licensing process. If FERC grants an exemption, the developer may still need to complete the Section 10 permitting process through the USACE.

13.16 to 13.17 – Will the Project Obstruct or Alter Navigable Waters of the U.S.?

The developer should consider whether the proposed project will obstruct or alter navigable waters of the U.S. Section 10 of the Rivers and Harbors Act of 1899 requires a developer to obtain a permit from the USACE for any project that obstructs or alters any navigable water of the United States, including any work or structures in, over, or under or affecting the course, location, or condition of navigable waters. Navigable waters of the United States are “those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” For more information, see:

Rivers and Harbors Act Section 10 Permit:
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13.18 – Continue with Project







Edit U.S. Army Corps of Engineers
Section 408 Regulatory Contacts Visit Website