Hydropower Pre-Existing Land Use Assessment Overview (13)
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 USACE Managed Structures?
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 hydroelectric facility on an USACE structure must complete the FERC licensing process.
13.4 to 13.5 - Will the Project Be on or adjacent to Military Lands?
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. If the proposed project will be on military land the developer should consult the Integrated Natural Resources Management Plan (INRMP).
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 reservation. 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.
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. 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
13.8 to 13.9 - Will the Project Raise Any State Land Use Issues?
If the project will impact any state land use, then the applicable state rules must be considered. Examples of state land use issues that may require a permit include state coastal issues, conservation districts, wetland, floodplain, dune protection, etc.
In Alaska, a developer may need to obtain approval from Alaska Department of Natural Resources (DNR) for any project located on state lands. The DNR must make a finding that the development project will be in the best interest of the state, considering the foreseeable effects on the state's fish and wildlife, historic, and cultural resources, and Alaska communities. For more information, see:
The Alaska Division of Mining Land and Water must also consider a development projects impact on shoreland, tideland, and submerged lands in the state's land use permitting process. For more information, see:
In California, a FERC license for the operation of a hydropower project located in or near a coastal zone, including primary transmission lines, is subject to a certification process for consistency with the California Coastal Management Program.
In Colorado, a developer must consider the location and land use designation on certain land before constructing a hydroelectric project. Certain municipal and local land use plans may have flood control, stream flow or wetland construction restrictions. For more information, see:
In addition, state-level wetland regulation is conducted 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:
In Michigan, a developer must consider the location and land use designations on certain land before constructing a hydroelectric project. A developer may need to obtain a Coastal Zone Consistency Certification if the proposed project is located within or might affect a coastal zone. For more information, see:
In New York, a developer must consider the location and land use designations on certain land before constructing a hydroelectric project. A developer may need to obtain a Freshwater Wetlands permit and/or a Tidal Wetlands Permit for new hydroelectric facilities, hydroelectric transmission extension projects and any other project that may disturb a protected state wetland or adjacent area. A developer may also need to obtain a Coastal Zone Consistency Certification if the proposed project is located within or might affect a coastal zone.
In Ohio, a developer must consider the location and land use designations on certain land before constructing a project. A developer may need to obtain a Coastal Zone Certificate of Consistency to comply with the Coastal Zone Management Act and the Ohio Coastal Management Program. For more information, see:
In Vermont, a developer must consider the location and land use designations on certain land before constructing a hydroelectric project. A developer may need to obtain a wetland permit for new hydroelectric facilities, hydroelectric transmission extension projects and any other project that disturbs “a significant wetland or its associated buffer zone.” 10 V.S.A. § 913(a). In addition, a developer may need to obtain a Flood Hazard and River Corridor Permit (Permit) for hydroelectric 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). For more information, see:
In Washington, a developer must consider the location and land use designations on certain land before constructing a project. A developer may need to obtain a Coastal Zone Certificate of Consistency in order to comply with Coastal Zone Management Act and Washington’s Coastal Zone Management Program. A developer may also need a Shoreline Substantial Development Permit, a Shoreline Conditional Use Permit, a Shoreline Variance or Shoreline Exemption for projects that interfere with State shorelands or are located near marine waters, streams, lakes, wetlands or floodplains. For more information, see:
13.10 to 13.11 – Will the Project Be Within FERC’s Jurisdiction?
If the project is licensed by 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.
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.”
13.14 – Continue with Project
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- Section 9 of the Rivers and Harbors Act of 1899 (33 USC 401)
- Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403)
- Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408)
- The Bridge Act of 1906 (33 U.S.C. 491 - 498)
- The General Bridge Act of 1946 (33 U.S.C. 525 - 533)
- Colorado – CRS § 25-8-103, Colorado Water Quality Control Act
- Colorado Code of Regulations 5 CCR § 1002-31, The Basic Standards and Methodologies of Surface Water
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