Hydropower Site Considerations Overview (2)
Site Considerations Overview Process
2.1 - Consider Project Location
Statutory or regulatory limitations require that certain lands be excluded from consideration for development. These lands generally include U.S. National Monuments, federally designated Wilderness Areas, and U.S. Forest Service primitive areas. Prior to substantial investments, a developer should research whether a proposed site or area is available for development. Federal Energy Regulatory Commission (FERC),Bureau of Reclamation (BOR), U.S. Forest Service (USFS), Fish and Wildlife Service (FWS), and Bureau of Land Management (BLM) provide guidance on federal exclusions and site specific stipulations to protect environmental resources.
Development may be restricted on a site for a variety of reasons, including:
- National park, monument, lakeshore, parkway, battlefield, or recreational area;
- National wildlife refuge, game preserve, fish hatchery;
- Wild and Scenic Rivers;
- Wilderness area or wilderness study area;
- Indian or Military reservation;
- Cultural and historic value;
- Recreational, geologic, wildlife, or scenic value;
- Fish presence value;
- Threatened and endangered species;
- Impacts to Military operations;
- Land and Water Conservation Fund areas; or
- Urban Park and Recreation Recovery lands.
Under Executive Order 11988, each federal agency is required to take action to reduce the risk of flood loss, to minimize the impact of floods on human safety, health and welfare, and to restore and preserve the values of floodplains. If a proposed project is located within a floodplain, then federal agencies are required to take specific actions during environmental review under the National Environmental Policy Act (NEPA). For example, the federal agency will be required to consider alternatives to avoid adverse effects and incompatible development in floodplains areas.
Each BLM and Forest Service field office has a Land Use Management Plan outlining site-specific exclusion information and stipulations for mitigation of environmental concerns. Visit the BLM or USFS for links to local offices.
Resources to Determine Land Use Limitations
The Western Renewable Energy Zones initiative addresses exclusions of potentially available areas in its Phase 1 Report, which you can find on the Western Governors' Association Energy Website.
The Western Governors' Association has developed the Crucial Habitat Assessment Tool (CHAT) which allows developers to access an online system of maps displaying crucial wildlife habitat and corridors across the western United States. The developer will be able to make an initial determination as to whether the proposed project will interfere with a wildlife area. CHAT is designed to reduce conflicts during the development process and ensure the protection of wildlife through incorporating such considerations in the land use decision-making process.
The Natural Resources Defense Council (NRDC) in conjunction with the United States Department of Defense has developed the Renewable Energy and Defense Geospatial Database (READ-Database) to provide Geographic Information Systems (GIS) data to assist developers in choosing an appropriate site for their renewable energy project. The READ-Database highlights possible project locations which are unlikely to interfere with military activities, and have the fewest environmental conflicts. To access the READ-Database, developers must submit a request to the NRDC on their website.
The Federal Energy Regulatory Commission (FERC) has jurisdiction over non-federal hydroelectric projects located on navigable waters of the United States. FERC also has jurisdiction over non-federal hydropower projects located on non-navigable streams that were constructed after August 26, 1935 and affect the interests of interstate or foreign commerce. 16 USC 804; 16 USC 817. Under the Federal Power Act, FERC may license non-federal hydropower projects on federal reservations, which as defined in Section 4(e) of the Federal Power Act includes all federal reservations such as lands managed by the Bureau of Reclamation, National Forests, National Wildlife Refuge, and Tribal reservations. FERC jurisdiction to license hydropower projects on federal reservations does not extend to licensing projects in National Parks and National Monuments. Additionally, FERC cannot issue a license or exemption for the construction of a new hydropower project located “on or directly affecting” any river designated for inclusion in the National Wild and Scenic Rivers System or congressionally authorized as a study river under Section 5(a) of the Wild and Scenic Rivers Act (WSRA). The WSRA may also limit both FERC’s authority to relicense existing hydropower projects and FERC’s authority to license or exempt hydropower projects located below, above, or on a stream tributary to a designated river or congressionally authorized study river. 16 U.S.C. §§ 1278(a)-(b). For more information on FERC’s Wild and Scenic Rivers process, see: FERC Wild and Scenic Rivers Process: 17-FD-b
Under Section 4(e) of the Federal Power Act, FERC must find the license will not interfere or be inconsistent with the original purposes of the reservation. In addition, if the project boundaries include land within a federal reservation, the agency charged with managing the land may require the license be conditioned to protect the reservation. Prior to substantial investments, a developer should research whether a proposed site or area is available for development.
FERC also must ensure that the hydropower project is best adapted to a comprehensive plan for developing the waterway for (among other things) the adequate protection, mitigation, and enhancement of fish and wildlife, and for other beneficial public uses. If a hydropower project has the potential to affect lands managed by a Federal or State agency, the FPA authorizes the agency exercising administration over those lands to advise and provide recommendations to FERC under FPA Section 10(a). 16 U.S.C. § 803(a).
2.2 - Consider Land Access
Dependent upon land ownership of the proposed development site, the process for obtaining land access and/or a lease will vary. Reviewing the potential lease process can prevent surprises. Many federal agencies have varying requirements for siting projects on land which they manage. For example, if a project is located near a national park and could impact or impair National Park Service (NPS) resources, then the developer is required to coordinate with NPS to determine whether the impact would harm the integrity of park resources or values. The developer should consider any federal agencies or land that may be impacted by the proposed project to determine whether any further siting restrictions may be applicable.
A right-of-way, lease, or other legal right to use the land is required before development can begin on a hydropower project. To develop certain non-federal hydropower projects on a federal reservation, developers must obtain a license from Federal Energy Regulatory Commission (FERC) which will grant access to federal lands within the project boundary subject to conditions set forth by the relevant land management agency. If a facility is exempt from FERC licensing, developers of projects on federal reservations will need to obtain access through the relevant land management agency’s rights-of-way or special use authorization process. In addition, developers seeking to construct a hydropower project on Bureau of Reclamation (BOR) managed land, without a FERC license, must obtain a Lease of Power Privilege from the BOR. Generation facilities located on DOD managed land will require an enhanced use lease.
Land access is a key consideration for both the generation facility and for other required rights-of-ways (access roads, gen-tie lines, encroachment, etc.) Developers seeking to develop on private land must obtain property rights to the land, either by purchasing the land or negotiating a lease with the private landowner. To develop on state land, the developer might be required to obtain a lease, a right of way, or both. For example, if transmission facilities must be sited on state land in order to connect the project to the grid, the developer will need to obtain a transmission right-of way.
2.3 – Consider Water Access and Water Rights
Water access and water rights are predominantly governed by state law. Although water requirements are a primary site consideration for all renewable energy project developers, the requirements will differ greatly depending on the type of project.
Hydropower projects require access to water for generating power. For example, a hydropower project may require water rights to the water impounded behind a dam or for a pumped storage facility. In addition, hydropower projects may require access to water for ancillary uses such as dust suppression for roads and construction activities.
The state in which the project is located may also require a permit for any project that will alter the bed of the water source.
For hydropower projects not subject to FERC licensing, Section 10 of the Rivers and Harbors Act similarly requires that the developer obtain a permit from the U.S. Army Corp of Engineers (USACE) if the project will obstruct or alter a navigable water of the United States.
For hydropower projects that are subject to FERC licensing, USACE will impose mandatory conditions on the FERC license, under FPA Section 4(e), in lieu of issuing a Section 10 permit.
2.4 - Review Applicable State and Local Law on Development Requirements
When considering a site for development, it may be useful to review some of the permits that will be required where the project is located. Reviewing the questions that will be considered during On-Site Evaluations will be useful in identifying potential issues with a particular location.
2.5 - Consider Environmental Process
The National Environmental Policy Act (NEPA) of 1970 requires Federal agencies to consider the potential environmental consequences of their proposed action, and any reasonable alternatives, before deciding whether and in what form to take an action.
The NEPA process is often the most time consuming process in permitting a project site. It is often required for multiple phases of the project, so it is a good idea to list the phases early on in project development so that multiple phases may be addressed in one EA/EIS.
2.6 - Consider Transmission Siting and Interconnection Overview
The proximity to existing transmission and access to potential rights-of-way is key to a successful project.
2.7 - Contact Lead Agency
An important early step in project development is determining which agency (or agencies) is most central to the project. A lead agency is the public agency that has the principal responsibility for approving a project. Lead agency determination is affected by surface management (Federal, tribal, state, or private) or land/mineral rights ownership. In some jurisdictions there is a single agency officially designated as the lead agency for the entire project. In other circumstances, there is no single, dominant agency, while in others an agency may only be the lead on certain matters (e.g. environmental issues) or project phases.
The permitting process differs depending on the lead agency, so scheduling a meeting early in the development process is important. This meeting should precede any filings of applications and permits, since requirements obtained in a pre-filing meeting will heavily set the overall direction and timing of the project. The lead agency will often work directly with other coordinating or participating agencies; when this occurs developers are not allowed to interact with a coordinating agency directly. It may take one to two years between a pre-filing meeting with the lead agency and formally submitting permitting documents to that agency.
Of utmost importance for hydropower developers is to consider whether the project will require a license from FERC. Pursuant to the Federal Power Act, FERC has exclusive authority to license or authorize most non-federal hydropower projects located on navigable waters or federal lands, or connected to the interstate electric grid. FERC Handbook, page 1-1.
The Bureau of Reclamation will be the lead agency when a Lease of Power Privilege is required to develop hydropower on a BOR managed conduit or dam.
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