RAPID/Solar/Federal/Pre-Existing Land Use

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Federal Solar Pre-Existing Land Use Assessment(13-FD)

Preexisting 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 preexisting uses. For instance, developers should consider impacts on farmland, livestock, nearby airports, military lands, navigable waters and whether the project is sited in or near a floodplain.

Farmland Evaluation Process

The Farmland Protection Policy Act (FPPA) requires federal agencies carrying out federal programs to identify and take into account any adverse effects on farmland created by those programs.

Only projects that are completed by or receive financial or technical assistance from a federal agency are subject to the FPPA. Activities that may be subject to the FPPA include:

  • State highway construction projects;
  • Airport expansions;
  • Electric cooperative construction projects;
  • Railroad construction projects;
  • Telephone company construction projects;
  • Reservoir and hydroelectric projects;
  • Federal agency projects that convert farmland; and
  • Other projects completed with federal assistance.

Activities that are not subject to the FPPA include:

  • Federal permitting and licensing;
  • Projects planned and completed without the assistance of a federal agency;
  • Projects on land already in urban development or used for water storage;
  • Construction for national defense purposes;
  • Construction of on-farm structures needed for farm operations;
  • Surface mining, where restoration of agricultural use is planned; and
  • Construction of new minor secondary structures such as a garage or storage shed.

In most cases, developers’ projects will not invoke the FFPA. Where they do, regulations governing the implementation of the FPPA can be found at 7 CFR 658 et seq.

Military Land Evaluation and DOD Clearinghouse Mission Compatibility Evaluation Process

The United States Department of Defense (DOD) has a unique national security interest in the projects that are developed on or adjacent to military land. Projects near or adjacent to military land may face restrictions due to their proximity to military installations and operations. Even if the proposed project does not involve a lease of military land, the project may still affect military operations and readiness to a degree that requires project restrictions and/or mitigation.

For projects in close proximity to military installations, developers can voluntarily seek informal review of a project’s effect on military operations prior to submitting a formal application with the Secretary of Transportation under 49 U.S.C. 44718. Section 358 of the Ike Skelton Defense Authorization Act. The DOD’s Siting Clearinghouse (“Clearinghouse”) oversees this informal review. The information required for informal review varies depending on the project type.

If the Clearinghouse determines that the project will not have an adverse impact on military operations and readiness, the process is complete. If the Clearinghouse determines that the project will have an adverse impact on military operations and readiness, the developer may (or may not) be required to mitigate such impacts.

If the proposed project does involve a lease of military land, the effects of the project must be compatible with the Integrated Natural Resources Management Plan (INRMP) (if one exists). 16 USC 670a(c). In the interest of ensuring the preparedness of the Armed Forces, INRMPs shall provide for no net loss in military capability. 16 USC 670a(b)(1)(I). When the impacts of a proposed project would be so extensive as to compromise military operations, it may be necessary to select an alternative location with fewer impacts.

Aeronautical Considerations

During site selection developers must consider the potential effects of construction projects that are near public or military airports. Developers should consult with local airports to determine whether the project will have any direct or indirect effects on nearby flyways. Under 49 USC 40103 - Sovereignty & Use of Airspace, airspace is exclusively federal in nature.

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

For any notice filed with the FAA pursuant to 49 USC 44718 - Structures Interfering with Air Commerce, the DOD will conduct a preliminary assessment to determine whether the project will have an adverse impact on military operations and readiness. The DOD will only object to a project by making a determination of unacceptable risk.

Bridge Permit Application

Projects involving the construction or modification of a bridge across a navigable waterway of the United States require approval from the United States Coast Guard (USCG) in the form of a bridge permit. In most cases, The General Bridge Act of 1946 is cited as the authority for bridge permits. USCG regulations implementing these statutes and governing the bridge permit application process can be found at 33 CFR 114 and 33 CFR 115. If unclear, the developer should contact the applicable USCG District Bridge Office to determine whether any proposed bridge will cross navigable waters of the United States.

Rivers and Harbors Act Section 10 Permitting

Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) prohibits the unauthorized obstruction or alteration of any navigable water of the United States. 33 CFR 320.2(b).

For projects requiring any work or structures in, over, or under or affecting the course, location, or condition of navigable waters, developers must obtain a permit from U.S. Army Corps of Engineers (USACE) prior to undertaking the activity. Regulations governing the Rivers and Harbors Section 10 program can be found at 33 CFR 320-332.

More Information

Determine Which Federal Permits Apply

Use this overview flowchart and following steps to learn which federal and state permits apply to your projects.