RAPID/Roadmap/13 (3)

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RAPIDRegulatory and Permitting Information Desktop Toolkit

Solar Pre-Existing Land Use Assessment Overview (13)

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 impact on farmland, livestock, nearby airports, military lands, navigable waters and whether the project is sited in or near a floodplain.


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 Affect Farmland or Livestock?

The United States Department of Agriculture and other federal agencies are tasked with ensuring that the actions of the federal government do not cause United States farmland to be irreversibly converted to non-agricultural uses. The Farmland Protection Policy Act protects agriculturally productive lands from conversion to other land uses, and it could impede a developer's ability to continue with a project. Impacts on farmland or livestock can occur through displacing agriculturally productive lands or through emissions that impact the productivity of agricultural lands.

The FPPA requires federal agencies carrying out federal programs to identify and take into account any adverse effects on farmland created by those programs. If the federal project will irreversibly convert farmland to a non-agricultural use, mitigaiton and alternative sites should be considered.

Farmland Evaluation Process:
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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.

Military Land Evaluation:
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13.6 to 13.7 - Will the Project Require the Construction of a Bridge over Navigable Waters?

Federal law protects navigable waters from any construction that could potentially impede the navigability of the channel. Construction or modification of a bridge across a navigable waterway of the United States requires a bridge permit from the United States Coast Guard (USCG). The USCG’s bridge permitting authority can be found in Section 9 of the Rivers and Harbors Act of 1899, The Bridge Act of 1906, and The General Bridge Act of 1946. Today, The General Bridge Act of 1946 is cited as the authority for bridge permits in most cases.

Bridge Permit Application Process:
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13.8 to 13.9 - 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 Aeronatucial Considerations:
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13.10 to 13.11 - 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 U.S. Army Corps of Engineers 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 Permit:
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13.12 to 13.13 - Will the Project Raise Any Coastal Land Issues?

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.

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:
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13.14 to 13.15 – 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.

Arizona

Currently the RAPID Toolkit does not have state specific content regarding wetland regulation for solar development in Arizona.

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:
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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:
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Nevada

Currently the RAPID Toolkit does not have state specific content regarding wetland regulation for solar development in Nevada.

New Mexico

Currently the RAPID Toolkit does not have state specific content regarding wetland regulation for solar development in New Mexico.

Utah

Currently the RAPID Toolkit does not have state specific content regarding wetland regulation for solar development in Utah.


13.12 to 13.14 – 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.

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:
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