Hydropower Environmental Review Overview (9)
The National Environmental Policy Act (NEPA) was signed into law on January 1, 1970. The Act establishes national environmental policy and goals for the protection, maintenance, and enhancement of the environment and provides a process for implementing these goals within the federal agencies. A developer will be required to go through the NEPA process if the project involves a "major federal action." The level and scope of the NEPA review will vary depending on the nature of the project and to what degree the federal government will be involved. Some actions and projects will receive a categorical exclusion while others may require a full Environmental Impact Statement (EIS). NEPA review is handled by a "lead agency." A “lead agency" is the federal agency responsible for writing the main NEPA document(s) and coordinating with any other federal, state, or tribal agencies.
For many hydropower projects, the lead agency will be the Federal Energy Regulatory Commission (FERC). However, under certain circumstances the lead agency will be the Bureau of Reclamation (BOR), the U S Army Corps of Engineers (USACE), or a federal land management agency such as the US Forest Service (USFS) or the Bureau of Land Management (BLM). A hydropower project may be required to undergo more than one NEPA review, each with a different lead agency. This would occur if, for example, USACE does not sign on as a cooperating agency for FERC review and instead completes a separate NEPA review for Section 404 permitting. An approach such as this would produce two distinct NEPA documents each potentially incorporating the contents of the other by reference.
In addition to comply with federal environmental regulation, the developer is required to comply with state environmental laws. Many states have adopted their own environmental laws and regulations.
Potential environmental impacts from hydropower development that may occur during the site evaluation, construction, and operation phases of the project include:
- Vehicle emissions, volatile organic compound (VOC) releases from storage and transfer of vehicle/equipment fuels, carbon monoxide, nitrogen oxides and particulates from blasting activities, and fugitive dust from clearing, grading, excavating, and vehicle and equipment traffic;
- Noise disturbances from drilling, blasting, vehicle traffic, turbine, generator, and transformer can impact migration, feeding, and reproduction patterns in species;
- Direct and indirect impacts to cultural resources from surface disturbances or excavation, erosion, sedimentation, increased human access can increase exposure to contaminants, and interfere with behavioral activities of species;
- Direct and indirect impacts to ecological resources (vegetation, wildlife, aquatic biota and their habitats) from introduction of invasive species from vehicle traffic, fugitive dust, erosion and runoff from excavation can limit a plant’s ability to photosynthesize, and impact habitats. Construction of roads, canals, pipelines, and transmission rights-of-way can fragment wildlife habitats affecting feeding and reproduction behaviors. Construction of intakes and dams can significantly alter the river leading to habitat loss and degradation for aquatic species; and
- Water quality could also be affected by activities that cause soil erosion, including construction of the intake and dam, which could increase turbidity and suspended sediment transport.
Environmental Review Overview Process
9.1 - Does the Project Include a Major Federal Action?
For NEPA to be triggered there must be a "major federal action" (action).
Major federal actions tend to fall within one of the following categories:
- Adoption of official policy, such as rules, regulations, and interpretations adopted pursuant to the Administrative Procedure Act, 5 U.S.C. 551 et seq.; treaties and international conventions or agreements; formal documents establishing an agency's policies which will result in or substantially alter agency programs.
- Adoption of formal plans, such as official documents prepared or approved by federal agencies which guide or prescribe alternative uses of Federal resources, upon which future agency actions will be based.
- Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.
- Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.
Major federal actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (NEPA § 1506.8, 1508.17). Actions do not include funding assistance solely in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., with no federal agency control over the subsequent use of such funds. Actions do not include bringing judicial or administrative civil or criminal enforcement actions.
In general, NEPA will be triggered if the project is on federal land, the federal government owns the mineral estate, the project receives federal funding or support, or if a federal permit is required. Within the context of hydropower development, NEPA will be triggered if the project requires an authorization from FERC, the discharge of dredge or fill material into waters of the United States, a Lease of Power Privilege for generating hydropower on a BOR managed conduit or dam, or a right-of-way on federal lands outside an established FERC project boundary.
9.2 to 9.3 - Is FERC the Lead Agency for the Major Federal Action?
Under NEPA, a “lead agency” is the agency preparing NEPA documentation or is the agency that has taken primary responsibility for coordinating the NEPA process. If FERC is the lead agency, then FERC will coordinate the NEPA process. This would typically be the case when any FERC authorization (permit or exemption) is required to develop or decommission a non-federal hydropower project. Under the Traditional Licensing Process, FERC’s typical NEPA process will be followed. Under the Alternative Licensing Process and the Integrated Licensing Process, the NEPA process is combined with the FERC licensing process.
A “cooperating agency” means any federal, state, local, or tribal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) for legislation or other major federal action significantly affecting the quality of the human environment. Where FERC is the lead agency for purposes of completing the NEPA process for hydropower development on federal land, the federal land management agency will take on the role of cooperating agency.
9.4 to 9.5 – Is the USACE the Lead Agency for the Major Federal Action?
If USACE is the lead agency, then it will coordinate the NEPA process. This would typically be the case for USACE issuance of a Section 404 permit for the discharge of dredge or fill material into waters of the U.S.
9.6 to 9.7 – Is the BOR the Lead Agency for the Major Federal Action?
If the Bureau of Reclamation (BOR) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the BOR executes a Lease of Power Privilege for a non-FERC licensed project. 43 USC §485h(c).
9.8 to 9.9 – Is the DOD the Lead Agency for the Major Federal Action?
If the United States Department of Defense (DOD) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the DOD executes an Enhanced Use Lease for development of a renewable energy project on a military reservation or if the DOD grants a right-of-way for a transmission line outside of the FERC project boundary.
9.10 to 9.11 – Is the BLM the Lead Agency for the Major Federal Action?
If the Bureau of Land Management (BLM) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the BLM grants a right-of-way for a transmission line outside of the FERC project boundary. If the BLM decides to complete its own NEPA review it may seek to incorporate any NEPA review completed by FERC when authorizing the project.
9.12 to 9.13 – Is the USFS the Lead Agency for the Major Federal Action?
If the US Forest Service (USFS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the USFS grants a right-of-way for a transmission line outside of the FERC project boundary. If the USFS decides to complete its own NEPA review it may seek to incorporate any NEPA review completed by FERC when authorizing the project.
9.14 to 9.15 – Is the FWS the Lead Agency for the Major Federal Action?
If the Fish and Wildlife Service (FWS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the FWS grants a right-of-way for a transmission line outside of the FERC project boundary. If the FWS decides to complete its own NEPA review it may seek to incorporate any NEPA review completed by FERC when authorizing the project.
9.16 to 9.17 – Is the NPS the Lead Agency for the Major Federal Action?
If the National Park Service (NPS) is the lead agency, then it will coordinate the NEPA process. This would typically be the case if the NPS grants a right-of-way for a transmission line outside of the FERC project boundary. If the NPS decides to complete its own NEPA review it may seek to incorporate any NEPA review completed by FERC when authorizing the project.
9.18 – If Necessary, Contact Other Federal Agencies for NEPA Process
If another federal agency is the lead agency for the major federal action then the developer will be required to contact that agency for its NEPA policies and procedures.
9.19 to 9.20 - Has an On-Site Evaluation Been Conducted?
The on-site evaluation process is intended to walk the developer through all of the required "environmental" considerations of a typical environmental review under NEPA.
9.21 - State Environmental Process
Most states have passed state environmental laws and regulations. Some states have an all-encompassing environmental review process such as the California Environmental Quality Act (CEQA) process, while other states consider only certain issues.
The state of Alaska has not adopted a state environmental review process.
CEQA is California’s state legislation governing environmental protection issues within California. CEQA is particularly concerned with environmental impacts caused by land use development. Unless exempt, all “discretionary projects” proposed to be carried out or approved by public agencies, including but not limited to licensing, must go through CEQA review. Cal. Pub. Res. Code §21080(a). Discretionary projects are those, which require the exercise of judgment or deliberation, as opposed to merely determining whether there has been compliance with applicable laws and regulations. 14 CCR §15357; see also 14 CCR §15369. For most hydropower projects in California, the State Water Resources Control Board (SWRCB) acts as the lead agency responsible for producing the environmental documents required by CEQA, although other entities (such as cities, municipal utility districts, and irrigation districts) have served as the State’s lead CEQA agency for some projects.
The state of Colorado has not adopted a state environmental review process.
Indiana has a State Environmental Policy Act, but this act does not apply to state agencies in the issuing of permits or licenses. More information on the Indiana Environmental Policy Act can be found in I.C. § 13-2-4 and I.A.C. § 326-16.
In Minnesota, a hydropower developer must comply with the Minnesota Environmental Policy Act. The scope of the environmental review depends on the size of the project and the lead agency in charge. For more information, see:
New York’s State Environmental Quality Review Act (SEQR) is New York’s legislation governing environmental protection issues within the state. The SEQR requires all state and local government agencies to consider the environmental impacts of their actions and to balance these environmental impacts with social and economic factors. State and local agencies must review projects early on in the planning stages, so that projects can be modified as needed to avoid adverse impacts to the environment. See N.Y. Env. Cons. L. § 8-0105.6); 6 CRR-NY VI 617.1; 6 CRR-NY VI 617.2); New York Division of Environmental Permits - SEQR: Guiding the Process. For more information, see:
The state of Ohio has not adopted a state environmental review process.
The state of Vermont has not adopted a state environmental review process.
Washington’s State Environmental Policy Act (SEPA) governs Washington’s environmental protection issues within the state. SEPA environmental review is required for any state or local agency decision that meets the definition of an “action” and is not categorically or statutorily exempt. To determine if SEPA review is required, the developer should accurately define the proposal, identifying all related and interdependent pieces of the project, including all permits that the project will require. WAC 197-11-060. For more information, see:
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