Bulk Transmission Environment in Federal
At a Glance
|Environmental Review Process:||National Environmental Policy Act|
|Environmental Review Agency:||United States Forest Service, Bureau of Land Management, Department of Energy, United States Department of Defense, U.S. Army Corps of Engineers, U.S. Department of Agriculture|
|Type of Federal Environmental Review (Leasing Stage):|
|Type of Federal Environmental Review (Non-invasive Exploration):|
|Type of Federal Environmental Review (Invasive Exploration):|
|Type of Federal Environmental Review (Drilling):|
|Type of Federal Environmental Review (Power Plant Siting):|
|Contacts/Agencies:||United States Forest Service, Bureau of Land Management, Department of Energy, United States Department of Defense, U.S. Army Corps of Engineers|
Federal Environment Process
A transmission developer needs to consider many environmental issues when developing a high-voltage transmission line project. This section discusses the environmental review process under the National Environmental Policy Act (NEPA) and many related environmental topics typically found in a NEPA review document, including:
- Cultural Resources;
- Biological Resources;
- Land Use Assessment;
- Water Quality;
- Visual Resources; and
- Waste & Hazardous Materials.
NEPA established policy and goals for the protection, maintenance, and enhancement of the environment and outlines the process for implementing these goals within federal agencies. Projects that involve a "major federal action" trigger the NEPA process. Generally, NEPA review is necessary if the project is on federal land, the project receives federal funding or support, or if where the project requires a federal permit.
The level and scope of the NEPA review will vary depending on the nature of the project and the level of involvement by federal agencies. A small amount of project activities may qualify as “casual use” and are otherwise exempt form NEPA review. Other project activities are “categorically excluded” from NEPA review by statute or regulation. Projects may require either an Environmental Assessment (EA) or a more detailed and time-consuming Environmental Impact Statement (EIS). Finally, where previous NEPA review of related activities is sufficient, certain project activities may be exempt from NEPA review after a Determination of NEPA Adequacy.
The NEPA process evaluates potential effects of electric transmission projects on environmental resources, such as land use, threatened and endangered species, wetlands, cultural and historic properties, socioeconomics, scenic areas, and other resources. NEPA review takes a “hard look” at the proposed activity by encouraging agency cooperation, soliciting public input and conducting tribal consultation where applicable. NEPA review is conducted by a "lead agency.” A “lead agency" is the federal agency responsible for producing the NEPA document(s) and coordinating with any other federal, state, or tribal agencies. For most projects, the lead agency will be the Bureau of Land Management (BLM), the United States Forest Service (USFS), the Department of Energy (DOE), the United States Department of Defense (DOD), the United States Department of Agriculture (USDA), or the United States Army Corp of Engineers (USACE). Each agency has specific regulations for implementing NEPA, however, all agencies’ regulations derive from and are guided by the procedural NEPA requirements outlined in the Council on Environmental Quality (CEQ) Regulations.
For any project, developers should initially determine which agency will be the “lead agency” for NEPA review. Developers can start by contacting the applicable land management agency based on the project location. If the applicable land management agency (likely BLM or USFS) is not the lead agency for project NEPA review, the agency will likely be able to assist the developer in determining which other agency is the lead agency for the project. On October 23, 2009, the Department of Energy and eight other Federal agencies entered into a Memorandum of Understanding (MOU) to improve coordination among project applicants, federal agencies, states and tribes involved in the siting and permitting process for electric transmission facilities on Federal land. The MOU designates a “Lead Agency” serving as the single point-of-contact for coordinating all federal environmental reviews necessary to site electric transmission facilities on federal lands. Participating agencies include the United States Department of Agriculture, United States Department of Commerce, United States Department of Defense, United States Department of Energy, Environmental Protection Agency, Council on Environmental Quality, Federal Energy Regulatory Commission, Advisory Council on Historic Preservation, and the United States Department of Interior.
Section 106 of the National Historic Preservation Act is intended to preserve and protect historic properties and to identify any unknown sites in the United States. Federal agencies are mandated to undergo a review process for any project that requires a federal permit, receives federal funding, license or approval and has the potential to impact properties listed on or eligible for listing on the National Register of Historic Places. The Act requires the federal agency to “take into account” the effect a project may have on historic properties and allows interested parties an opportunity to comment on the potential impacts a project may have on historic properties. The implementing regulations require the responsible federal agency to make a “reasonable and good faith effort” to identify historic properties that may be affected by the project.  Under Section 106, the lead agency in consultation with the land managing agency, must identify and assess the effects of an undertaking (including transmission line projects) on historic properties. The project proponent will typically fund the technical studies required to accomplish the identification and assessment efforts. The lead federal agency consults with the appropriate State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Office (THPO) if required, land managing agency, Native American tribes, appropriate state and local officials, and members of the public, and consider their views and concerns about historic preservation when making final Initiative decisions. Effects are addressed by mutual agreement with the SHPO and/or THPO, the lead federal agency, and any other involved parties. Most often in the case of large scale undertakings, Section 106 compliance is managed through the use of a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA). Typically a MOA or PA, establishes the agreed upon measures to resolve the adverse effects and the roles and responsibilities of the agency and the consulting parties.
If the responsible agency finds that there are no historic properties present or that the undertaking will have no effect upon historic properties that are present, the responsible agency will provide documentation of the finding to the SHPO and/or THPO. 
If historic properties are identified, the process is more involved and time consuming. The SHPO and THPO have separate processes that require similar actions by the responsible agency and developer. After consultation with the responsible agency and SHPO and/or THPO, the developer will need to hire a consulting archaeologist. Based on consultation and the surveys, the parties will enter into an MOA, which outlines agreed-upon measures that the agency will take to avoid, minimize, or mitigate the adverse effects on national historic properties or historic tribal resources. If the consulting parties are not able to reach an agreement, the consultation is terminated and the responsible agency must allow the Advisory Council on Historic Preservation (ACHP) an opportunity to comment before the responsible agency renders a final decision that would allow the project to continue. In many cases, the MOA or PA is written and agreed upon prior to the cultural surveys.
Biological Resource Concerns
Almost any project may have effects on various biological resources protected by federal law. Early consultation with the U.S. Fish and Wildlife Service (USFWS) is the primary method of determining the most advantageous site and time for development in order to avoid issues with protected species and avoid delay in processing environmental analysis. During preliminary screening, developers should consider migratory birds, bald and golden eagle habitat, protected marine mammals, endangered and threatened species, and other special status species. If preliminary screening reveals the presence of protected biological resources, the developer will likely need one or more permits or authorizations from the USFWS or the National Marine Fisheries Service (NMFS). Most permits require a biological survey, as part of the NEPA process, to determine if the “take” of a protected biological resource will occur. Generally, “take” includes the harassment or killing of the protected biological resources, whether intentional or incidental, and can also include activities that affect habitat in such a way that may result in take.
Migratory Bird Considerations
The Migratory Bird Treaty Act (MBTA) protects migratory birds and their nests and eggs, from “take” unless authorized by permit or regulation. Developers are encouraged to consult with the USFWS and state wildlife agencies to determine if the project has the potential to take migratory birds in violation of the MBTA.
The MBTA is a strict liability statute and neither the MBTA nor the current implementing regulations include a specific provision that would permit incidental take. Consultation with USFWS biologists should result in identifying project-related stressors and available protective measures during development. Developers are encouraged to implement those measures prior to and during construction and operation of facilities.
Whereas developers can choose to consult with the USFWS, federal agencies taking actions that have, or are likely to have, a measureable negative effect on migratory bird populations are required, under Executive Order 13186: Responsibilities of Federal Agencies to Protect Birds (EO 13186), to act in a way that protects migratory birds and their habitats. Specifically, EO 13186 states that federal agencies should integrate bird conservation principles into agency actions and planning. Such integration includes developing and implementing conservation measures that avoid the production of project-associated stressors or minimize the exposure of stressors to birds and the resources they depend on. Generally, federal agencies will integrate migratory bird considerations and protection into the NEPA process.
Bald & Golden Eagle Permit
The Bald and Golden Eagle Protection Act (“Eagle Act”) prohibits developers from “taking” bald or golden eagles (collectively, Eagles) unless authorized by permit or regulation. For projects that may result in the take of Eagles, developers will most likely need to obtain a Nonpurposeful Eagle Take Permit from the USFWS. The implementing regulations for Eagle take permits are codified at 50 CFR 22.26.
A Nonpurposeful Eagle Take Permit can allow for programmatic take. Programmatic take (take that is recurring and not in a specific, identifiable timeframe and/or location) can be authorized only where it is unavoidable despite implementation of comprehensive measures developed in cooperation with the USFWS to reduce the take below current levels. For examples, collisions with and electrocutions on electric utility lines would constitute a programmatic take. Most projects that may result in take will require a Nonpurposeful Eagle Take Permit for programmatic take.
ESA section 7 Consultation Process
Section 7 of the ESA requires each federal agency to actively engage in the conservation and recovery of threatened or endangered species. Federal agencies must ensure that any action authorized, funded, or carried out by a federal agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.
Developers can request an early Section 7 consultation prior to filing an application for a permit or license. Consultation includes the developer, the action agency, and either the USFWS or NMFS. Consultation is either formal or informal, depending on whether the proposed project is likely to adversely affect species or critical habitat.
ESA Section 10 Incidental Take Permit
Certain projects may result in the taking of endangered or threatened species covered under the Endangered Species Act (ESA). The USFWS and/or the NMFS (collectively, “the Services”) are responsible for issuing permits authorizing the incidental take of threatened or endangered species that is consistent with the conservation of the species. An incidental take permit (ITP) does not authorize the underlying activities that may result in take.
Developers applying for an ITP are required to submit a Habitat Conservation Plan (HCP). A significant part of the application, the HCP specifies the impacts that are likely to result from the taking and the measures the developer will undertake to minimize and mitigate such impacts. 16 USC 1539(a)(2)(A).
ITPs only apply for non-Federal activities that will result in take of treated or endangered species. The USFWS or NMFS must conduct internal ESA Section 7 consultation prior to issuing an incidental take permit.
Land Use Assessment
Preexisting land uses crossed by and adjacent to the project right-of-way 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 floodplains.
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 (including transmission lines);
- 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 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. See 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). In the interest of ensuring the preparedness of the Armed Forces, INRMPs shall provide for no net loss in military capability.  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.
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), or in proximity to certain types of airports, 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.
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.  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.
Pursuant to the Clean Water Act, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) are responsible for protecting water quality and wetlands. In some cases the EPA delegates permitting authority to state agencies. Otherwise, the EPA retains administrative authority to issue permits that may allow for stormwater discharges during construction, the discharge of pollutants at any time during a project, or the utilization of underground injection wells. Similarly, the USACE retains authority in most states to administer 404 permits for any transmission line project that discharges dredge or fill material into waters of the United States, which includes wetlands.
Storm Water Construction General Permit
Transmission line projects that involve construction sites disturbing one or more acres of land or smaller sites that are part of a common plan of development or sale are required to obtain a Construction General Permit under the National Pollutant Discharge Elimination System (NPDES) as required by 40 CFR 122.26(b)(14)(x) and (b)(15). The United States Environmental Protection Agency (EPA) has authorized certain states to implement the NPDES program and issue their own permits for stormwater discharges associated with construction activities. The EPA is the permitting authority in Idaho, Massachusetts, New Hampshire, New Mexico, and the District of Columbia. Transmission line projects in those states may require a NPDES general permit from the EPA. In addition, the EPA is the permitting authority for federal operators in Colorado, Delaware, Vermont, and Washington; and on most tribal lands.
EPA NPDES Permitting Process
For the states listed above that do not have authority to administer NPDES, the EPA administers NPDES in a uniform manner pursuant to 40 CFR 122. Developers will apply for either an individual or general NPDES permit and the EPA facilitates public notice and comment prior to issuing any permit. The EPA will not issue a NPDES permit unless the developer has obtained a 401 water quality certification from the applicable state.
Under Section 404 of the Clean Water Act, authorization from the USACE is required for the discharge of dredged or fill material into waters of the United States, including wetlands. “Waters of the United States” is defined in 33 CFR 328.3(a). Administration of the 404 program is guided by the rules and procedures in 33 CFR 320-332. Developers should initially determine if the transmission line project will cause any discharges to waters of the United States. If the transmission line project will not cause any discharges, a 404 permit is not required.
Certain projects may qualify for one of the more expeditious general permits: Nationwide Permits, Regional General Permits, and Programmatic General Permits. Developers should contact the USACE district office(s) where the transmission line project is located to ensure compliance with any district-specific requirements as part of a general permit. Transmission line projects that cannot meet the terms and conditions of a general permit require an individual permit.
Developers should be aware that the potential effects of transmission projects on visual resources has been a major challenge in siting transmission facilities. Transmission line projects may cause visual contrast within the landscapes they cross due to their length, size and the regular geometric forms of the transmission towers. These projects may affect multiple sensitive viewers (i.e., residents, recreationist, etc.) located along the right-of-way.
At the federal level, a project required to go through the NEPA process must evaluate impacts to visual resources. Some public agencies have requirements or provide guidelines for evaluating and assessing impacts to visual resources for projects that cross their jurisdiction. For example, the Bureau of Land Management (BLM), U.S. Forest Service (USFS), and the U.S. Army Corp of Engineers (USACE) have developed methodologies for inventorying visual resources and assessing visual impacts on lands under their respective jurisdictions. Other agencies that do not have developed visual resource methods of their own often times use the BLM and USFS methods (or variations thereof) as the basis for conducting visual resource inventory and impact analysis. For example, the U.S. Bureau of Indian Affairs refers to the BLM and USFS methods in the Energy Transport Corridor Siting for Tribal Planners Guidance Manual.
Included as part of the BLM’s Visual Resource Management System are two manuals that provide methods for inventory and analysis of visual resources. The first is the BLM Visual Resource Inventory Manual, which provides methods for evaluating scenic quality and for assessing public concern for scenic quality using sensitivity-level analysis. The Visual Resource Inventory process is used on BLM lands to describe existing conditions. The second is the BLM Visual Resource Contrast Rating Manual, which provides a systematic process to analyze potential visual impacts of projects and activities. Contrast ratings are used to describe the level of change introduced by a proposed project by the amount of contrast it introduces in comparison to the extant conditions.
The Scenery Management System, as described in the USFS’s Landscape Aesthetics: A Handbook for Scenery Management provides an overall framework for the inventory, analysis and management of scenery. The USFS’s scenic management guidelines direct that the assessment of potential impacts to scenic resources be based on the public’s concern for scenic quality or scenic values within a landscape and on potential project’s related changes to the existing landscape.
Waste & Hazardous Material
Permits as they relate to waste and hazardous materials do not typically apply to transmission line projects; however, applicants should review federal, state, and local laws and regulations for permits that may be applicable.
Policies & Regulations
- 14 CCR 15064.5: Determining the Significance of Impacts to Archaeological and Historical Resources
- 16 U.S.C. 470w
- 42 U.S.C. 6601
- 42 U.S.C. 6901 - Solid Waste Disposal Act
- 42 U.S.C. 7401 et seq. - Clean Air Act
- 42 U.S.C. 9601
- 42 U.S.C. 9604
- 42 U.S.C. 9607
- 43 U.S.C. §485h New Projects; Sale of Water and Electric Power
- 516 DM Chapter 12 Managing the NEPA Process National Park Service
- 516 DM Chapter 8 Managing the NEPA Process U.S. Fish and Wildlife Service
- 550 FW 3 Documenting and Implementing Decisions
- 550 FW 3 NEPA Decision Documents
- 7 U.S.C. 4201 et seq.
- ACHP - Consultation with Indian Tribes in the Section 106 Review Process: a Handbook
- ACHP - Meeting the "Reasonable and Good Faith" Identification Standard in Section 106 Review
- ACHP - Nationwide Programmatic Agreements
- ACHP - Recommended Approach for Consultation on Recovery of Significant Information from Archeaological Sites
- ACHP - Relationship of Section 106 to Other Laws
- ACHP - Section 106 Applicant Toolkit
- ACHP - Section 106 Regulations Flowchart
- ACHP - Section 106 Regulations Flowchart Explanatory Material
- ACHP's Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites
- Advisory Council on Historic Preservation - Section 106 Regulations
- Advisory Council on Historic Preservation website
- An Introduction to Electric Power Transmission
- Applicable EPA Regulations and Description Website
- Application for Department of the Army Permit: Engineering Form 4345
- Application for Nonpurposeful Eagle Take Permit
- Archaeological Resources Protection Act
- Army Corps of Engineers - Application for Department of the Army Permit
- Army Corps of Engineers - Instructions for Preparing a Department of the Army Permit Application
- Army Corps of Engineers - Regulatory Guidance Letters
- Avian Conservation Resources
- BLM - Information on Cultural Resource Use Permits webpage
- BLM - Instruction Memorandum No. 2009-167
- BLM - Instruction Memorandum No. 2012-140
- BLM - Instruction Memorandum No. OC-2012-005
- BLM - Paleontological Resource Use Permits webpage
- BLM - Paleontological Resources Use Permit Application
- BLM - Sage-Grouse and Sagebrush Conservation webpage
- BLM - State Protocol Agreement with Nevada
- BLM - Western BLM Bird Species of Conservation Concern List
- BLM Extraordinary Circumstances Checklist
- BLM Manual 8110 - Identifying and Evaluating Cultural Resources
- BLM Manual 8120 - Tribal Consultation Under Cultural Resources
- BLM Manual 8140 - Protecting Cultural Resources
- BLM Manual 8270 - General Procedural Guidance for Paleontological Resource Management
- BLM NEPA Handbook
- … further results
- Title 36 CFR 800 Protection of Historic Properties (2014). 4(b)
- Title 36 CFR 800 Protection of Historic Properties (2014). 4(b)(1)
- Sikes Act (1960). 16 USC 670a(c)
- Sikes Act (1960). 16 USC 670a(b)(1)(I)
- 33 CFR 320-332 (2014). 320.2(b)