RAPID/Roadmap/13 (1)

From Open Energy Information

< RAPID‎ | Roadmap

RAPIDRegulatory and Permitting Information Desktop Toolkit

Hydropower Pre-Existing Land Use Assessment Overview (13)

Pre-existing 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. Developers should consider impacts to U.S. Army Corps of Engineers (USACE) managed structures, military lands, navigable waters, nearby airports and, whether the project will raise any state land issues.


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.

U.S. Army Corps of Engineers Section 408 Authorization:
7-FD-u

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. The developer should consult the Integrated Natural Resources Management Plan (INRMP) if the proposed project will be on military land.

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.

Military Land Evaluation:
13-FD-b

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

Aeronautical Considerations:
13-FD-d

13.8 to 13.9 – Will the Project Impact State Coastal Lands?

A developer may need to obtain coastal zone approval for projects that have the potential to impact state coastal zones from states that have programs that comply with the federal Coastal Zone Management Program.

The federal Coastal Zone Management Program established by the Coastal Zone Management Act (CZMA) of 1972 is a voluntary state-federal partnership, which encourages states to adopt their own management programs in order to meet the federal goals of protection, restoration, and appropriate development of coastal zone resources. 15 CFR Part 930, Subpart D; 16 U.S.C. § 1456(c)(3)(A). The CZMA applies to projects located within the state’s coastal areas and to projects located outside of the state’s coastal areas that are reasonably likely to affect the state’s coastal resources or coastal land and water uses. See 15 CFR § 930.11. The CZMA defines “coastal zone” as “the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends, in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of State title and ownership[.]” 16 U.S.C. § 1453(1).

A state may also require additional state coastal land approvals.

Alaska

Alaska does not currently require specific coastal zone approval for projects that have the potential to impact state coastal zones. A developer may need to obtain a Best Interest Finding from the Alaska Department of Natural Resources and/or a Land Use Permit from Alaska Division of Mining Land and Water. See 13.12 to 13.13.

California

In California, a developer may need to obtain a multiple state coastal land permit for projects that have the potential to impact state coastal zones. A developer may need to obtain Coastal Development Permit from the California Coastal Commission or the California Energy Commission. A developer may also need to comply with the federal consistency provisions of the Coastal Zone Management Act. For more information, see:

State Coastal Zone Land Use Assessment Overview:
13-CA-a

Minnesota

Currently, the RAPID Toolkit does not have specific state information regarding coastal zone regulation for hydroelectric development in Minnesota.

Louisiana

Currently, the RAPID Toolkit does not have specific state information regarding coastal zone regulation for hydroelectric development in Louisiana.

New York

In New York, a developer may need to provide a Coastal Zone Consistency Certification to the New York Department of State if the proposed project is located within or may affect a New York coastal area. For more information, see:

Coastal Zone Consistency Certification:
13-NY-c

Ohio

In Ohio, a developer may need to provide a Coastal Zone Consistency Certification to the Ohio Department of Natural Resources for projects located within, or that may affect, an Ohio coastal zone, and that involves federal activities, federal licenses, or permit, and/or federal assistance programs. For more information, see:

Coastal Zone Consistency Certification:
13-OH-c

Washington

In Washington, a developer may need to obtain a Coastal Zone Certificate of Consistency from the Washington Department of Ecology for developments located within Washington’s coastal counties that involve federal activities, federal licenses or permits, or federal programs. For more information, see:

Coastal Zone Management Federal Consistency Determination:
13-WA-c

Wisconsin

In Wisconsin, a developer needs to obtain a Coastal Zone Consistency Certification from the Wisconsin Coastal Management Council (CMS) for projects that 1) involve federal activities, federal licenses or permits, and federal assistance programs, and 2) are located within one of Wisconsin’s coastal zones or have an impact on Wisconsin’s coastal resources. CMS reviews such project proposals to ensure those projects are consistent with the Wisconsin Coastal Management Program in order to protect the state’s coastal resources. For more information, see:

Coastal Zone Consistency Certification:
13-WI-c


13.10 to 13.11 – Will the Project Impact State Wetlands?

A developer may need to obtain approval from the state for projects that impact freshwater, tidal, or other wetlands in the state.

Alaska

Alaska does not currently require specific wetland approval for projects that have the potential to impact state wetlands. A developer may need to obtain a Best Interest Finding from the Alaska Department of Natural Resources and/or a Land Use Permit from Alaska Division of Mining Land and Water. See 13.12 to 13.13.

California

In California, the State Water Resources Control Board conducts state-level wetland regulation through California’s 401 Water Quality Certification program. For more information, see:

401 Water Quality Certification:
14-CA-d


Colorado

In Colorado, 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:

401 Water Quality Certification:
14-CO-d

Indiana

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Indiana.

Iowa

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Iowa.

Kentucky

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Kentucky.

Louisiana

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Louisiana.

Minnesota

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Minnesota.

Missouri

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Missouri.

New York

In New York, a developer may need to obtain a Freshwater Wetlands Permit and/or a Tidal Wetlands Permit from the New York State Department of Environmental Conservation for new hydroelectric facilities, transmission extension projects, and any other project that may disturb a protected state wetland or adjacent area. For more information, see:

Wetland Use Assessment Overview:
13-NY-a

North Dakota

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in North Dakota.

Pennsylvania

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Pennsylvania.

Tennessee

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Tennessee.

Vermont

In Vermont, 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.” For more information, see:

Wetland Permit:
13-VT-d

West Virginia

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in West Virginia.

Wisconsin

Currently, the RAPID Toolkit does not have specific state information regarding wetland regulation for hydroelectric development in Wisconsin.

13.12 to 13.13 – Will the Project Impact Raise Any Additional Pre-existing State Land Use Issues?

A state may require additional state land use approvals regarding a number of pre-existing land features. For example, a state may require approval for projects that may impact state floodplains, dunes, conservation districts, shorelines, and river corridors.

Alaska

In Alaska, a developer must consider the location and land use designation on certain lands before constructing a project. A developer may need to obtain a Land Use Permit from the Alaska Department of Natural Resources’s Division of Mining, Land and Water (DMLW) to access Alaska state land. The DMLW must also consider a development projects impact on shoreland, tideland, and submerged lands in the state's land use permitting process. In addition, a developer may need to obtain a Best Interest Finding from DMLW before developing on state land. The DMLW 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 resources, cultural resources, and Alaska communities. For more information, see:

State Pre-existing Land Use Assessment Overview:
13-AK-a

Colorado

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:

Land Use Planning:
1-CO-a

Vermont

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 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). In addition, a developer may need to obtain a Lake Encroachment Permit from the Vermont Agency of Natural Resources for any encroachment beyond the mean water level of a lake or pond. For more information, see:

State Pre-Existing Land Use Assessment Overview:
13-VT-a

Washington

In Washington, a developer must consider the location and land use designations on certain land before constructing a project. A developer may need a Shoreline Substantial Development Permit, a Shoreline Conditional Use Permit, a Shoreline Variance, or Shoreline Exemption for projects that interfere with State shorelines or are located near marine waters, streams, lakes, wetlands, or floodplains. For more information, see:

State Shoreline Use Assessment Overview:
13-WA-a


13.14 to 13.15 – 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.

13.16 to 13.17 - Will the Project Obstruct or Alter Navigable Waters of the U.S.?

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.”

Rivers and Harbors Act Section 10 Permitting Process:
13-FD-e

13.18 – Continue with Project




Contact Information

| Add a Contact



References

| Add a Reference





Edit U.S. Army Corps of Engineers
Section 408 Regulatory Contacts Visit Website