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Geothermal Construction and Transportation Permits Overview (6)

Information current as of 2018
Constructing a power plant requires numerous permits from Federal, state, and local governments, related to transporting construction materials, encroaching upon Federal and state right-of-ways, demolishing existing structures and building new structures and attendant stormwater control and other water-related matters.


Construction and Transportation Permits Overview Process

6.1 to 6.2 – Will the Activity Require Transporting Construction Equipment or Materials on State Roads?

State and local governments require transportation permits for transporting oversized equipment and construction materials on public roads. For specific requirements by state see:

Alaska

In Alaska, a developer must obtain a permit for vehicles or vehicles with loads with dimensions or weights that exceed the maximum or weights provided regulation. For more information, see: Oversize/Overweight Permit:
6-AK-a

California

In California, the California Department of Transportation may issue a transportation permit for the movement of vehicles on State highways and streets with loads exceeding the statutory limitations on size, weight, and loading. For more information, see:

Oversize/Overweight Permit:
6-CA-a

Colorado

In Colorado, a developer may need an Extra-legal Vehicle or Load Permit to operate or move a vehicle or load of a size or weight exceeding the legal limits on a State highway. For more information, see:

Oversize/Overweight Permit:
6-CO-a

Hawaii

In Hawaii, a developer needs an Oversize and/or Overweight Vehicle and Load Permit from the Hawaii Department of Transportation Highways Division to operate vehicles or transport loads of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-HI-a

Idaho

In Idaho, a developer needs an Over-legal Permit to operate a vehicle or transport loads of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-ID-a

Montana

In Montana, the Montana Department of Transportation requires permits for the use of over-dimension and/or overweight vehicles on State highway. For more information, see:

Oversize/Overweight Permit:
6-MT-a

New Mexico

In New Mexico, a developer needs a Special Permit for Excessive Size or Weight to operate or transport a load of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-NM-a

Nevada

In Nevada, a developer needs a transportation permit from the Nevada Department of Transportation to operate or transport a load of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-NV-a

Oregon

In Oregon, a developer needs a transportation permit to operate or transport a load of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-OR-a

Texas

In Texas, a developer needs a Extra-legal Vehicle Permit to operate or transport a load of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-TX-a

Utah

In Utah, a developer needs a transportation permit to operate or transport a load of a size or weight that exceeds the maximum statutory dimensions. For more information, see:

Oversize/Overweight Permit:
6-UT-a

Washington

In Washington, a developer may need an Oversize/Overweight Permit from the Washington State Department of Transportation to transport overweight or oversized loads to the construction site. For more information, see:

Oversize/Overweight Permit:
6-WA-a

6.3 to 6.4 – Will the Activity Encroach on a State or Local Highway Right of Way?

State and local governments require an encroachment permit for any object placed in, over, or under a local or state highway right-of-way (i.e. towers, poles, pipelines, fences, and other structures), as well as when a private access road or driveway joins a public road.

Alaska

In Alaska, a developer may need a State Highway Right-of-Way Permit for projects that encroach on a State highway right-of-way. For more information, see: State Highway Right-of-Way Permit:
3-AK-c

California

In California, the California Department of Transportation requires an encroachment permit for all activities related to the placement of encroachments within, under or over California highway right-of-ways. For more information, see: State Highway Encroachment Permit:
3-CA-c

Colorado

In Colorado, a developer may need a State Highway Access Permit and/or a State Utility-Special Use Permit for projects that encroach on State highway right-of-ways. For more information, see: State Highway Encroachment Permits:
3-CO-c

Hawaii

In Hawaii, a developer needs a Use and Occupancy Permit from the Hawaii Department of Transportation for projects that will are adjacent to and within a State highway right-of way. For more information, see: State Highway Encroachment Permits:
3-HI-c

Idaho

In Idaho, a developer may need a State Highway Encroachment Permit from the Idaho Transportation Department to add, modify, relocate, maintain, or remove an encroachment on the State highway or within the State highway right-of-way. For more information, see: State Highway Encroachment Permit:
3-ID-c

Montana

In Montana, a developer may need a State Highway Encroachment Permit for projects that encroach on State highways. For more information, see: State Highway Encroachment Permits:
3-MT-c

New Mexico

In New Mexico, a developer may need an State Highway Encroachment Permit from the New Mexico Department of Transportation for projects that encroach on existing State right-of-ways. For more information, see: State Highway Encroachment Permits:
3-NM-c

Nevada

In Nevada, a developer may need a State Highway Encroachment Permit for projects that encroach on any Nevada street, highway, or other right-of-way. For more information, see: State Highway Encroachment Permit:
3-NV-c

Oregon

In Oregon, the Oregon Department of Transportation issues permits for encroachments on State highway right-of-ways. For more information, see: State Highway Encroachment Permit:
3-OR-c

Texas

In Texas, a developer may need a State highway encroachment permit for projects that encroach on existing State highway right-of-ways. For more information, see: State Highway Encroachment Permits:
3-TX-c

Utah

In Utah, a developer may need a highway encroachment permit from the Utah Department of Transportation for projects that are within a State highway right-of-way. For more information, see:

State Highway Encroachment Permits:
3-UT-c

Washington

In Washington State, developers who plan to place utility lines in a state highway right-of-way will need to obtain Utility Permit or Franchise from the Washington State Department of Transportation. For more information, see: State Highway Encroachment Permits:
3-WA-c

6.5 to 6.6 – Will the Activity Cause Stormwater To Disturb the Soil?

A developer may need to obtain a state construction stormwater permit if the project will cause stormwater to disturb the soil. The Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program requires developers to obtain permits for the discharge of pollutants into “waters of the United States.” 40 CFR § 122.1(b)(1).

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)).


Under the NPDES program requirements, a developer must obtain a permit to discharge stormwater from a construction project. 40 CFR § 122.26((c). 40 CFR § 122.26(b)(14)(x), (b)(15)(i) defines a construction project as a project that involves clearing, grading, and excavating and that results in land disturbance of equal to or greater than one acre or is part of a larger plan of common development or sale that will disturb one or more acres. Construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. 40 CFR § 122.26(b)(15)(i). Under the CWA, individual states can administer NPDES programs as long as each state’s program conforms to the requirements of the CWA and is approved by the United States Environmental Protection Agency (EPA). 40 CFR § 123. Most states have implemented the NPDES requirements by administering a stormwater construction general permit. Note: Individual state programs may expand upon the federal NPDES threshold requirements. See generally 33 U.S.C. § 1342. States may also require a stormwater discharge permit for construction projects disturbing less than one acre if the discharge, or a category of discharges within a geographic area, would contribute to a violation of a water quality standard, would be a significant contributor to pollution of state or U.S. waters, or would exceed pollutant “total maximum daily load” limitations for a water source. 40 CFR § 122.26(a)(1)(v), (a)(9)(i)(C)-(D). Developers should review the stormwater permitting process for each state in which they will be operating to ensure compliance with those states’ NPDES programs.

Alaska

In Alaska, a developer may need to obtain an Alaska Storm Water Construction General Permit (General Permit) from the Alaska Department of Environmental Conservation (ADEC) if construction activities will disturb one or more acres of land or are part of a common plan of development or sale that will disturb one or more acres of land. Alaska Storm Water Construction General Permit, § 1.4.1. The ADEC oversees the issuance of these General Permits in accordance with Alaska Stat. § 46.03.100, 18 AAC § 15.130, and 18 AAC § 83. For more information on Alaska’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-AK-b

California

In California, a developer may need to obtain a General NPDES Permit from the California State Water Resources Control Board (SWRCB) if construction activities will disturb one or more acres of soil or are part of a larger common plan of development or sale that, in total, disturbs one or more acres. General Permit for Discharges of Stormwater Associated with Construction Activities (General Permit), § I(B)(18)-(19). The SWRCB regulates construction stormwater discharges through the state’s General Permit. Construction General Permit Fact Sheet, at 12. For more information on California’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-CA-b

Colorado

In Colorado, a developer may need to obtain a Colorado Discharge Permit System General Discharge Permit (General Permit) from the Colorado Department of Public Health and Environment (CDPHE) if construction activities will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land, where the discharge will enter waters of the state. 5 CCR § 1002-61.1(1)(b), 61.3(2)(f)(ii)(A), 61.3(2)(e)(iii)(J). The CDPHE Water Quality Control Division (WQCD) regulates stormwater discharges associated with construction activities under the Colorado Water Quality Control Act (Colorado – C.R.S. 25-8-101 et seq.) and the Code of Colorado Regulations 5 CCR 1002-61, Colorado Discharge Permit System. For more information on Colorado’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-CO-b

Hawaii

In Hawaii, a developer may need to obtain a NPDES General Permit from the Hawaii Department of Health Clean Water Branch (DHCWB) if construction activities will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. Haw. Code R. § 11-55-34.2. The Hawaii Department of Health Clean Water Branch regulates stormwater discharges and grants NPDES General Permits under Section 402 of the Clean Water Act (33 U.S.C. 1251 et seq.) and Hawaii Administrative Rules 11-55. For more information on Hawaii’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-HI-b

Idaho

The state of Idaho does not have authority from the United States Environmental Protection Agency to issue a construction stormwater permit. A developer engaging in construction activities that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land may need to obtain a Federal Stormwater Construction General Permit from the United States Environmental Protection Agency. For a link to the Federal Stormwater Construction General Permit process page, see:

Federal Stormwater Construction General Permit:
6-FD-a

Montana

In Montana, a developer may need to obtain a General Permit for Stormwater Discharges Associated with Construction Activity from the Montana Department of Environmental Quality (DEQ) before engaging in construction activities that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. Montana regulates water quality under Montana Code Annotated 75-5. The DEQ is responsible for regulating stormwater discharges associated with construction activities in Montana. Specific stormwater discharge requirements are listed in ARM 17.30.1105. For more information on Montana’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-MT-b

New Mexico

New Mexico does not have the authority to issue construction stormwater permits under NPDES. A developer engaging in construction activities that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land may need to obtain a Federal Stormwater Construction General Permit from the United States Environmental Protection Agency. However, the Surface Water Quality Bureau (SWQB), within the New Mexico Environment Department, assists the EPA in the regulation of stormwater discharges by performing inspections on behalf of the EPA and serving as the local point of contact for providing information to operators and other agencies regarding the federal regulatory program. For more information, visit the SWQB website. For a link to the Federal Stormwater Construction General Permit process page, see:

Federal Stormwater Construction General Permit:
6-FD-a

Nevada

In Nevada, a developer may need to obtain a Stormwater General Permit from the Nevada Division of Environmental Protection (NDEP) if construction activities will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. NRS 445A Water Controls. The Nevada Bureau of Water Pollution Control, located within the NDEP, issues Construction Stormwater Permits. For more information on Nevada’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-NV-b

Oregon

In Oregon, a developer may need to obtain a Construction Stormwater General Permit from the Oregon Department of Environmental Quality (ODEQ) before engaging in construction activities that may discharge to surface waters (or conveyance systems leading to surface waters) and that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. OAR 340-045-033(11)(f); See generally 340-045-0015. Certain jurisdictions in Oregon allow the local government to administer the Construction Stormwater Permit requirements as an agent of the ODEQ. See Application Manual, page 3. For more information on Oregon’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-OR-b

Texas

In Texas, a developer may need to obtain a construction general permit from the TCEQ before engaging in construction activities that could discharge stormwater into or adjacent to waters in the state and that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. Texas Water Code § 26.121 Unauthorized Discharges Prohibited; Texas Water Code 26.040 General Permits. The TCEQ has authority from the EPA to administer NPDES, and issues these permits, overseeing the process in Texas. Texas Water Code 26.040 General Permits. For more information on Texas’ stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-TX-b

Utah

In Utah, a developer may need to apply for a UPDES General Permit for Discharges from Construction Activities (Permit No. UTRC00000) (UPDES Permit) from the Utah Division of Water Quality (DWQ) before engaging in construction activities that may discharge stormwater into waters of the state and that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. U.A.C. R317-8-2.1; U.A.C. R317-8-2.1(1)(d). Utah Code Ann. § 19-5-107 authorizes the DWQ to issue UPDES permits. For more information on Utah’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-UT-b

Washington

In Washington, a developer may need to apply for a Washington Construction Storm Water General Permit (CSWGP) from the Washington State Department of Ecology (WSDE) before engaging in construction activities that may discharge stormwater into waters of the state and that will disturb one or more acres of land or are part of a larger common plan of development or sale that will disturb one or more acres of land. See generally Washington Construction Storm Water General Permit. The United States Environmental Protection Agency (EPA) has delegated authority to the WSDE to implement the Clean Water Act (CWA). Under the CWA, the WSDE regulates discharges from construction stormwater through RCW 90.48 and Washington Administrative Code 173-226. The CSWGP covers all areas of Washington State except for federal and Tribal lands, as specified in the CWSGP. For more information on Washington’s stormwater permitting requirements and processes, see:

Construction Stormwater Permit:
6-WA-b


6.7 to 6.8 – Will This Project Provide Non-Municipal Drinking Water?

If the project will provide non-municipal drinking water, then developer should consult the Drinking Water Flowchart applicable to the state which the project will take place.


Alaska In Alaska, a developer may need a Drinking Water Permit for a geothermal facility. For more information, see: Drinking Water Permit:
6-AK-c

Nevada

In Nevada, a developer may need a Drinking Water Permit for a geothermal facility. For more information, see:

Drinking Water Permit:
6-NV-c

Utah

In Utah, a developer may need a Drinking Water Permit for a geothermal facility. For more information, see:

Drinking Water Permit:
6-UT-c

6.9 – See Additional State Construction Permits

Developer should reference any other construction permit applicable to the state in which the project will take place.

6.10 to 6.11 - Does the Activity Involve Construction of a Power Plant?

If the project will involve construction of a power plant, then the developer should consult the Power Plant Construction Flowchart applicable to the state in which the project will take place.

Power Plant Siting, Construction, and Regulation Overview: 7

6.12 to 6.13 - Has a County Use Permit Been Obtained?

If a county use permit has not been obtained, then the developer should consult the County Use Permit Flowchart applicable to the state in which the project will take place.

6.14 to 6.17 - Will the Project Require Demolishing an Existing Structure, Building a New Structure, Grading Land, Installing Plumbing, or an Exception from Local Zoning Regulations?

Local governments require a demolition permit prior to the removal or demolition of any building, structure, or part thereof. Additionally, Local governments require developers to obtain a building permit for all new constructions or alterations to existing structures. Geothermal projects, which include earthmoving and grading activities, usually require a grading permit from the local government. Local governments require plumbing permits for underground piping, piping inside of walls, above ceilings, and beneath floors. Finally, a conditional use permit (CUP) allows a local government to consider special uses that may be essential or desirable to the local community through a public hearing process that are not allowed under the local governments zoning regulations. Local governments may also use CUPs to control certain uses which might have negative effects on the community.

6.18 - No Permit Needed; Continue with Project

If no permit is needed, then the developer may continue with the project.