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Hydropower Site Considerations Overview (2)

A hydropower developer should consider the proposed project’s site location in terms of pre-existing land use restrictions, land and water access, and impacts to environmental resources, among other factors. Specifically, the developer should consider the project site location in terms of:


  • Pre-existing land uses that may restrict or inhibit project development;
  • Land access requirements;
  • Proximity to existing transmission lines and interconnections;
  • Proximity to existing land and highway right-of-ways;
  • Water access and water rights;
  • Aesthetic and recreational resources at, and near the proposed site location that may be impacted by project development;
  • Cultural and environmental resources at, and near, the proposed site location that may be impacted by project development, including:
    • cultural resources at, and near, the proposed site location;
    • water resources at, and near, the proposed site location;
    • ecological and geological resources at, and near, the proposed site location; and
    • biological resources at, and near, the proposed site location.


Site Considerations Overview Process

2.1 to 2.3 – Consider Project Location Restrictions

The developer should consider whether the proposed project site location has pre-existing land use restrictions. If the land being considered is managed by a federal agency there may be certain restrictions limiting what the land can be used for. A hydropower developer should consider what agency or governmental body will oversee the permitting process as land is managed differently to adhere to ecosystem vitality and sustainability.

Statutory or regulatory limitations require that certain lands be excluded from consideration for development. These lands generally include U.S. National Monument lands, federally designated Wilderness Areas, and U.S. Forest Service primitive areas. Before substantial investments, a developer should research whether a proposed site or area is available for development. Federal agencies such as the Bureau of Reclamation (BOR), the Federal Energy Regulatory Commission (FERC), the U.S. Forest Service (USFS), the U.S. Fish and Wildlife Service (FWS), and the Bureau of Land Management (BLM) provide guidance on federal exclusions and site-specific stipulations to protect environmental resources.

Development may be restricted on a site for a variety of reasons, including:

  • National park, monument, lakeshore, parkway, battlefield, or recreational area;
  • National wildlife refuge, game preserve, fish hatchery;
  • Wild and Scenic Rivers;
  • Wilderness area or wilderness study area;
  • Indian or military reservation;
  • Cultural and historic value;
  • Recreational, geologic, wildlife, or scenic value;
  • Fish presence value;
  • Threatened and endangered species;
  • Impacts to military operations;
  • Land and Water Conservation Fund areas; or
  • Urban park and recreation recovery lands.

Under Executive Order 11988, each federal agency is also 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.

Each BLM and USFS field office has a Land Use Management Plan outlining site-specific exclusion information and stipulations for mitigation of environmental concerns.

FERC has jurisdiction over non-federal hydroelectric projects located on navigable waters of the United States. FERC also has jurisdiction over non-federal hydropower projects located on non-navigable streams that were constructed after August 26, 1935 and affect the interests of interstate or foreign commerce. 16 USC 804; 16 USC 817. Under the Federal Power Act, FERC may license non-federal hydropower projects on federal reservations, which as defined in Section 4(e) of the Federal Power Act includes all federal reservations such as lands managed by the Bureau of Reclamation, National Forests, National Wildlife Refuge, and Tribal reservations. FERC jurisdiction to license hydropower projects on federal reservations does not extend to licensing projects in National Parks and National Monuments. Additionally, FERC cannot issue a license or exemption for the construction of a new hydropower project located “on or directly affecting” any river designated for inclusion in the National Wild and Scenic Rivers System or congressionally authorized as a study river under Section 5(a) of the Wild and Scenic Rivers Act (WSRA). The WSRA may also limit both FERC’s authority to relicense existing hydropower projects and FERC’s authority to license or exempt hydropower projects 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 and Scenic Rivers Act Section 7 Review: 17-FD-b

Under Section 4(e) of the Federal Power Act, FERC must find the license will not interfere or be inconsistent with the original purposes of the reservation. In addition, if the project boundaries include land within a federal reservation, the agency charged with managing the land may require the license be conditioned to protect the reservation. Prior to substantial investments, a developer should research whether a proposed site or area is available for development.

FERC also must ensure that the hydropower project is best adapted to a comprehensive plan for developing the waterway for (among other things) the adequate protection, mitigation, and enhancement of fish and wildlife, and for other beneficial public uses. If a hydropower project has the potential to affect lands managed by a federal or state agency, the Federal Power Act (FPA) authorizes the agency exercising administration over those lands to advise and provide recommendations to FERC under FPA Section 10(a). 16 U.S.C. § 803(a).

For more information on common pre-existing land use restrictions, see:

Pre-Existing Land Use Assessment Overview: 13 (1)

Resources to Determine Land Use Limitations

The Western Association of Fish and Wildlife Agencies has developed the Crucial Habitat Assessment Tool (CHAT) which allows developers to access an online system of maps displaying crucial wildlife habitat and corridors across the western United States. The developer will be able to make an initial determination as to whether the proposed project will interfere with a wildlife area. CHAT is designed to reduce conflicts during the development process and ensure the protection of wildlife through incorporating such considerations in the land use decision-making process.

The Natural Resources Defense Council (NRDC) in conjunction with the United States Department of Defense (DOD) has developed the Renewable Energy and Defense Geospatial Database (READ-Database) to provide Geographic Information Systems (GIS) data to assist developers in choosing an appropriate site for their renewable energy project. The READ-Database highlights possible project locations, which are unlikely to interfere with military activities, and have the fewest environmental conflicts. To access the READ-Database, developers must submit a request to the NRDC on their website.

2.4 to 2.5 – Consider Land Access Requirements and Proximity to Existing Right-of-Ways

Land access is a key consideration for both the generation facility and for other required right-of-ways (e.g., access roads, gen-tie lines, encroachment, etc.) necessary for hydropower development. A hydropower project will likely require access to, over, or under a combination of federal, state, local, tribal, and private land. The developer should consider the project’s location in terms of proximity to existing land and highway right-of-ways for hydropower development and what approvals are required.

Generally, to gain access to federal, state, local, or tribal land, the developer will need to obtain a right-of-way, lease, or other use authorization. To develop certain non-federal hydropower projects on a federal reservation, developers must obtain a license from FERC , which will grant access to federal lands within the project boundary subject to conditions set forth by the relevant land management agency. If a facility is exempt from FERC licensing, developers of projects on federal reservations will need to obtain access through the relevant land management agency’s right-of-ways or special use authorization process. In addition, developers seeking to construct a hydropower project on BOR managed land, without a FERC license, must obtain a Lease of Power Privilege from the BOR. Generation facilities located on DOD managed land will require an enhanced use lease.

For access to private land, the developer generally obtains property rights to the land by either purchasing the land or negotiating a lease with the private landowner. For more information on land access requirements, see:

Land Access Overview: 3

2.6 to 2.9 – Consider Water Access and Water Rights Requirements

The developer should consider the project’s water access needs in relation to the project site. State law predominantly governs water access and water rights. Hydropower projects require access to water for generating power. For example, a hydropower project may require water rights to the water impounded behind a dam or for a pumped storage facility. In addition, hydropower projects may require access to water for ancillary uses such as dust suppression for roads and construction activities.

The state in which the project is located may also require a permit for any project that will alter the bed of the water source.

For more information about water access and water rights, see:

Water Access and Water Rights Overview: 19

For hydropower projects not subject to FERC licensing, Section 10 of the Rivers and Harbors Act similarly requires that the developer obtain a permit from the U.S. Army Corp of Engineers (USACE) if the project will obstruct or alter a navigable water of the United States. For more information, see:

Rivers and Harbors Act Section 10 Permit:
13-FD-e

For hydropower projects that are subject to FERC licensing, USACE will impose mandatory conditions on the FERC license, under FPA Section 4(e), in lieu of issuing a Section 10 permit. For more information, see:

U.S. Army Corps of Engineers - FERC License Conditions and Recommendations:
7-FD-r

2.10 to 2.11 – Consider Transmission Siting and Interconnection Requirements

The developer should also consider the preliminary site location in terms of transmission siting and interconnection requirements. The developer should consider the site locations proximity to existing transmission lines and interconnections and what approvals will be required. For more information, see:

Transmission Siting and Interconnection: 8

2.12 to 2.14 – Review Applicable Federal, State, and Local Law on Development Requirements

When considering a site for development, the developer should review applicable state and local laws to determine which approvals may be necessary where the project is located. For instances, the developer should consider:

Aesthetic and recreational resources at, and near the proposed site location that may be impacted by project development;

  • Cultural and environmental resources at, and near, the proposed site location that may be impacted by project development, including:
    • cultural resources at, and near, the proposed site location;
    • water resources at, and near, the proposed site location;
    • ecological and geological resources at, and near, the proposed site location; and
    • biological resources at, and near, the proposed site location.

Reviewing the questions considered during the on-site evaluation would be useful in identifying potential federal, state, and local development approvals. For more information, see:

On-Site Evaluation Overview: 10

In addition, the developer should consider the construction and transportation permits that may be required for development. For more information, see:

Construction and Transportation Permits: 6

2.15 to 2.16 – Consider Environmental Review

The National Environmental Policy Act (NEPA) of 1969 requires Federal agencies to consider the potential environmental consequences of their proposed action, and any reasonable alternatives, before deciding whether and in what form to take an action.

The NEPA process is often the most time consuming process in permitting a project site. It is often required for multiple phases of the project, so it is a good idea to list the phases early on in project development so that multiple phases may be addressed in one EA/EIS.

In addition, most states have passed state environmental laws and regulations. Some states have an all-encompassing environmental review process such as the California Environmental Quality Act, while other states consider only certain issues.

For more information on federal and state environmental reviews, see:

Environmental Review: 9

2.17 – Contact Lead Agency

An important early step in project development is determining which agency (or agencies) is most central to the project. A lead agency is the public agency that has the principal responsibility for approving a project. Lead agency determination is affected by surface management (Federal, tribal, state, or private) or land/mineral rights ownership. In some jurisdictions there is a single agency officially designated as the lead agency for the entire project. In other circumstances, there is no single, dominant agency, while in others an agency may only be the lead on certain matters (e.g. environmental issues) or project phases.

The permitting process differs depending on the lead agency, so scheduling a meeting early in the development process is important. This meeting should precede any filings of applications and permits, since requirements obtained in a pre-filing meeting will heavily set the overall direction and timing of the project. The lead agency will often work directly with other coordinating or participating agencies; when this occurs developers are not allowed to interact with a coordinating agency directly. It may take one to two years between a pre-filing meeting with the lead agency and formally submitting permitting documents to that agency.

Of utmost importance for hydropower developers is to consider whether the project will require a license from FERC. Pursuant to the FPA, FERC has exclusive authority to license or authorize most non-federal hydropower projects located on navigable waters or federal lands, or connected to the interstate electric grid. FERC Handbook, page 1-1. For more information, see:

FERC Overview:
7-FD-e

The U.S. Army Corps of Engineers will be the lead agency when authorization is required under Section 404 of the Clean Water Act to discharge dredge or fill material into waters of the United States. For more information, see:

Clean Water Act Section 404 Permit:
14-FD-a

The Bureau of Reclamation will be the lead agency when a Lease of Power Privilege is required to develop hydropower on a BOR managed conduit or dam.

Bureau Of Reclamation Lease of Power Privilege:
3-FD-p







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