Solar Environment in Federal
At a Glance
|Environmental Review Process:||National Environmental Policy Act|
|Environmental Review Agency:||United States Forest Service, Bureau of Land Management, Department of Energy, United States Department of Defense|
|Type of Federal Environmental Review (Leasing Stage):||Typically an Environmental Assessment (EA) is conducted for individual leases or rights-of-way. An Environmental Impact Statement (EIS) may be required for programmatic environmental reviews or when reviewing multiple lease parcels or rights-of-way in a single review.|
|Type of Federal Environmental Review (Non-invasive Exploration):|
|Type of Federal Environmental Review (Invasive Exploration):|
|Type of Federal Environmental Review (Drilling):|
|Type of Federal Environmental Review (Power Plant Siting):|
|Contacts/Agencies:||United States Forest Service, Bureau of Land Management, Department of Energy, United States Department of Defense|
Federal Environment Process
A utility-scale solar developer needs to consider many environmental issues when developing a solar project. This section discusses the environmental review process under the National Environmental Policy Act (NEPA) and many related environmental topics typically found in a NEPA review document, including:
- Cultural Resources;
- Biological Resources;
- Land Use Assessment;
- Water Quality
- Air Quality; and
- Waste & Hazardous Materials.
The National Environmental Policy Act (NEPA) established policy and goals for the protection, maintenance, and enhancement of the environment and outlines the process for implementing these goals within federal agencies. Projects that involve a "major federal action" trigger the NEPA process. Generally, NEPA review is necessary if the project is on federal land, the federal government owns the mineral estate, the project receives federal funding or support, or if where the project requires a federal permit.
The level and scope of the NEPA review will vary depending on the nature of the project and the level of involvement by federal agencies. A small amount of project activities may qualify as “casual use” and are otherwise exempt form NEPA review. Other project activities are “categorically excluded” from NEPA review by statute or regulation. Most projects activities require either an Environmental Assessment or a more detailed and time-consuming Environmental Impact Statement. Finally, where previous NEPA review of related activities is sufficient, certain project activities may be exempt from NEPA review after a Determination of NEPA Adequacy.
Generally, NEPA review considers the social, environmental, and economic impacts of a proposed activity and considers alternatives. NEPA review takes a “hard look” at the proposed activity by encouraging agency cooperation, soliciting public input and conducting tribal consultation where applicable.
NEPA review is conducted by a "lead agency.” A “lead agency" is the federal agency responsible for producing the NEPA document(s) and coordinating with any other federal, state, or tribal agencies. For most projects, the lead agency will be the Bureau of Land Management (BLM), the United States Forest Service (USFS), the Department of Energy (DOE), or the United States Department of Defense (DOD). Each agency has specific regulations for implementing NEPA, however, all agencies’ regulations derive from and are guided by the procedural NEPA requirements outlined in the Council on Environmental Quality (CEQ) Regulations.
For any project, developers should initially determine which agency will be the “lead agency” for NEPA review. While not necessarily dispotive, developers can start by contacting the applicable land management agency based on the project location. If the applicable land management agency (likely BLM or USFS) is not the lead agency for project NEPA review, the agency will likely be able to assist the developer in determining which other agency is the lead agency for the project (potentially DOE or DOD).
Section 106 of the National Historic Preservation Act is intended to preserve and protect historic properties in the United States. Generally, any project that requires a federal permit, license or approval and has the potential to affect properties listed in or eligible for listing in the National Register of Historic Places must be assessed by the appropriate State or Tribal Historic Preservation Officer (SHPO/THPO). The federal agency issuing the permit, license or approval is responsible for assessing whether historic properties are present; however, the developer will likely be involved in the process. The implementing regulations, 36 CFR 800.4(b), require the responsible federal agency to make a “reasonable and good faith effort” to identify historic properties that may be affected by the project. The amount and scope of effort required depends on various factors, including:
- Past planning, research, and studies;
- The magnitude and nature of the undertaking;
- The degree of Federal involvement;
- The nature and extent of effects on historic properties; and
- The likely nature and location of historic properties within the area of potential effects
If the responsible agency finds that there are no historic properties present or that the undertaking will have no effect upon historic properties that are present, the responsible agency will provide documentation of the finding to the SHPO/THPO. 36 CFR 800.4(d)(1)
If historic properties are identified, the process is more involved and time consuming. The SHPO and THPO have separate processes that require similar actions by the responsible agency and developer. After consultation with the responsible agency and SHPO/THPO, the developer will likely need to hire a surveyor and potentially an archaeologist. Based on consultation and the results of (potentially archaeological) surveys, the parties will enter into a Memorandum of Agreement (MOA), which outlines agreed-upon measures that the agency will take to avoid, minimize, or mitigate the adverse effects on national historic properties or historic tribal resources. If the consulting parties are not able to reach an agreement, the consultation is terminated and the responsible agency must allow the Advisory Council on Historic Preservation (ACHP) an opportunity to comment before the responsible agency renders a final decision that would allow the project to continue.
Biological Resource Concerns
Almost any project may have effects on various biological resources protected by federal law. Early consultation with the U.S. Fish and Wildlife Service (USFWS) is the primary method of determining the most advantageous site and time for development in order to avoid issues with protected species and avoid delay in processing environmental analysis. During preliminary screening, developers should consider migratory birds, bald and golden eagle habitat, protected marine mammals and endangered and threatened species. If preliminary screening reveals the presence of protected biological resources, the developer will likely need one or more permits or authorizations from the USFWS or the National Marine Fisheries Service (NMFS). Most permits require a biological survey, as part of the NEPA process, to determine if the “take” of a protected biological resource will occur. Generally, “take” includes the harassment or killing of the protected biological resources, whether intentional or incidental, and can also include activities that affect habitat in such a way that may result in take.
Migratory Bird Considerations
The Migratory Bird Treaty Act (MBTA) protects migratory birds and their nests and eggs, from “take” unless authorized by permit or regulation. Developers are encouraged to consult with the USFWS and state wildlife agencies to determine if the project has the potential to take migratory birds in violation of the MBTA.
The MBTA is a strict liability statute and neither the MBTA nor the current implementing regulations include a specific provision that would permit incidental take. Consultation with USFWS biologists should result in identifying project-related stressors and available protective measures during development. Developers are encouraged to implement those measures prior to and during construction and operation of facilities.
Whereas developers can choose to consult with the USFWS, federal agencies taking actions that have, or are likely to have, a measureable negative effect on migratory bird populations are required, under Executive Order 13186: Responsibilities of Federal Agencies to Protect Birds (EO 13186), to act in a way that protects migratory birds and their habitats. Specifically, EO 13186 states that federal agencies should integrate bird conservation principles into agency actions and planning. Such integration includes developing and implementing conservation measures that avoid the production of project-associated stressors or minimize the exposure of stressors to birds and the resources they depend on. Generally, federal agencies will integrate migratory bird considerations and protection into the NEPA process.
Bald & Golden Eagle Permit
The Bald and Golden Eagle Protection Act (“Eagle Act”) prohibits developers from “taking” bald or golden eagles (collectively, Eagles) unless authorized by permit or regulation. For projects that may result in the take of Eagles, developers will most likely need to obtain a Nonpurposeful Eagle Take Permit from the USFWS. The implementing regulations for Eagle take permits are codified at 50 CFR 22.26.
A Nonpurposeful Eagle Take Permit can allow for programmatic take. Programmatic take (take that is recurring and not in a specific, identifiable timeframe and/or location) can be authorized only where it is unavoidable despite implementation of comprehensive measures developed in cooperation with the USFWS to reduce the take below current levels. For example, collisions with and electrocutions on electric utility lines would constitute a programmatic take. Most projects that may result in take will require a Nonpurposeful Eagle Take Permit for programmatic take.
ESA Section 10 Incidental Take Permit
Certain projects may result in the taking of endangered or threatened species covered under the Endangered Species Act (ESA). The USFWS and/or the NMFS (collectively, “the Services”) are responsible for issuing permits authorizing the incidental take of threatened or endangered species that is consistent with the conservation of the species. An incidental take permit (ITP) does not authorize the underlying activities that may result in take.
Developers applying for an ITP are required to submit a Habitat Conservation Plan (HCP). A significant part of the application, the HCP specifies the impacts that are likely to result from the taking and the measures the developer will undertake to minimize and mitigate such impacts. 16 USC 1539(a)(2)(A).
ITPs only apply for non-Federal activities that will result in take of treated or endangered species. The USFWS or NMFS must conduct internal ESA Section 7 consultation prior to issuing an incidental take permit.
ESA section 7 Consultation Process
Section 7 of the ESA requires each federal agency to actively engage in the conservation and recovery of threatened or endangered species. Federal agencies must insure that any action authorized, funded, or carried out by a federal agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.
Developers can request an early Section 7 consultation prior to filing an application for a permit or license. Consultation includes the developer, the action agency, and either the USFWS or NMFS. Consultation is either formal or informal, depending on whether the proposed project is likely to adversely affect species or critical habitat.
National Marine Fisheries Service Marine Mammal Protection Act
Section 101(a)(5)(A) of the MMPA authorizes the NMFS or the USFWS (the Services), depending on the type of marine mammal affected, to issue permits for the incidental take of marine mammals.
The USFWS has jurisdiction over species such as manatees, sea otters, polar bears, and Pacific walruses. The NMFS has jurisdiction over most other marine mammal species, including pinnipeds other than those under the jurisdiction of the USFWS (seals, sea lions), and all cetaceans (porpoises, dolphins, and whales).
If there is the potential for mortality or serious injury, the developer must obtain a Letter of Authorization (LOA) from the Service. If there is no potential for mortality (or serious injury under NMFS’ regulations), the developer can obtain an Incidental Harassment Authorization (IHA) from the Service, issued under section 101(a)(5)(D), for no more than a 1-year period.
Regulations governing the NMFS MMPA incidental take authorization process are located at 50 CFR 216.101 to 50 CFR 216.108. Regulations governing the USFWS MMPA incidental take authorization process are located at 50 CFR 18.27.
Land Use Assessment
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 impacts on farmland, livestock, nearby airports, military lands, navigable waters and whether the project is sited in or near a floodplain.
Farmland Evaluation Process
The Farmland Protection Policy Act (FPPA) requires federal agencies carrying out federal programs to identify and take into account any adverse effects on farmland created by those programs.
Only projects that are completed by or receive financial or technical assistance from a federal agency are subject to the FPPA. Activities that may be subject to the FPPA include:
- State highway construction projects;
- Airport expansions;
- Electric cooperative construction projects;
- Railroad construction projects;
- Telephone company construction projects;
- Reservoir and hydroelectric projects;
- Federal agency projects that convert farmland; and
- Other projects completed with federal assistance.
Activities that are not subject to the FPPA include:
- Federal permitting and licensing;
- Projects planned and completed without the assistance of a federal agency;
- Projects on land already in urban development or used for water storage;
- Construction for national defense purposes;
- Construction of on-farm structures needed for farm operations;
- Surface mining, where restoration of agricultural use is planned; and
- Construction of new minor secondary structures such as a garage or storage shed.
In most cases, developers’ projects will not invoke the FFPA. Where they do, regulations governing the implementation of the FPPA can be found at 7 CFR 658 et seq.
Military Land Evaluation and DOD Clearinghouse Mission Compatibility Evaluation Process
The United States Department of Defense (DOD) has a unique national security interest in the projects that are developed on or adjacent to military land. Projects near or adjacent to military land may face restrictions due to their proximity to military installations and operations. Even if the proposed project does not involve a lease of military land, the project may still affect military operations and readiness to a degree that requires project restrictions and/or mitigation.
For projects in close proximity to military installations, developers can voluntarily seek informal review of a project’s effect on military operations prior to submitting a formal application with the Secretary of Transportation under 49 U.S.C. 44718. Section 358 of the Ike Skelton Defense Authorization Act. The DOD’s Siting Clearinghouse (“Clearinghouse”) oversees this informal review. The information required for informal review varies depending on the project type.
If the Clearinghouse determines that the project will not have an adverse impact on military operations and readiness, the process is complete. If the Clearinghouse determines that the project will have an adverse impact on military operations and readiness, the developer may (or may not) be required to mitigate such impacts.
If the proposed project does involve a lease of military land, the effects of the project must be compatible with the Integrated Natural Resources Management Plan (INRMP) (if one exists). 16 USC 670a(c). In the interest of ensuring the preparedness of the Armed Forces, INRMPs shall provide for no net loss in military capability. 16 USC 670a(b)(1)(I). When the impacts of a proposed project would be so extensive as to compromise military operations, it may be necessary to select an alternative location with fewer impacts.
During site selection developers must consider the potential effects of construction projects that are near public or military airports. Developers should consult with local airports to determine whether the project will have any direct or indirect effects on nearby flyways. Under 49 USC 40103 - Sovereignty & Use of Airspace, airspace is exclusively federal in nature.
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 (FAA). 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
For any notice filed with the FAA pursuant to 49 USC 44718 - Structures Interfering with Air Commerce, the DOD will conduct a preliminary assessment to determine whether the project will have an adverse impact on military operations and readiness. The DOD will only object to a project by making a determination of unacceptable risk.
Bridge Permit Application
Projects involving the construction or modification of a bridge across a navigable waterway of the United States require approval from the United States Coast Guard (USCG) in the form of a bridge permit. In most cases, The General Bridge Act of 1946 is cited as the authority for bridge permits. USCG regulations implementing these statutes and governing the bridge permit application process can be found at 33 CFR 114 and 33 CFR 115. If unclear, the developer should contact the applicable USCG District Bridge Office to determine whether any proposed bridge will cross navigable waters of the United States.
Rivers and Harbors Act Section 10 Permitting
For projects requiring any work or structures in, over, or under or affecting the course, location, or condition of navigable waters, developers must obtain a permit from U.S. Army Corps of Engineers (USACE) prior to undertaking the activity. Regulations governing the Rivers and Harbors Section 10 program can be found at 33 CFR 320-332.
Pursuant to the Clean Water Act, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) are responsible for protecting water quality that may be affected by projects. In some cases the EPA delegates permitting authority to state agencies. Otherwise, the EPA retains administrative authority for permits that may allow for stormwater discharges during construction or the discharge of pollutants at any time during a project. Similarly, the USACE retains authority in most states to administer 404 permits for any project that discharges dredge or fill material into waters of the United States.
Storm Water Construction General Permit
Construction sites disturbing one or more acres of land or smaller sites that are part of a common plan of development or sale are required to obtain a Construction General Permit under the National Pollutant Discharge Elimination System (NPDES) as required by 40 CFR 122.26(b)(14)(x) and (b)(15). The United States Environmental Protection Agency (EPA) has authorized certain states to implement the NPDES program and issue their own permits for stormwater discharges associated with construction activities.
The EPA is the permitting authority in Idaho, Massachusetts, New Hampshire, New Mexico, and the District of Columbia. Projects in those states may require a NPDES general permit from the EPA. In addition, the EPA is the permitting authority for federal operators in Colorado, Delaware, Vermont, and Washington; and on most tribal lands.
EPA NPDES Permitting Process
For the states listed above that do not have authority to administer NPDES, the EPA administers NPDES in a uniform manner pursuant to 40 CFR 122. Developers will apply for either an individual or general NPDES permit and the EPA facilitates public notice and comment prior to issuing any permit. The EPA will not issue a NPDES permit unless the developer has obtained a 401 water quality certification from the applicable state.
Under Section 404 of the Clean Water Act, authorization from the USACE is required for the discharge of dredged or fill material into waters of the United States, including wetlands. 33 CFR 328.3(a) defines “waters of the United States.” Administration of the 404 program is guided by the rules and procedures in 33 CFR 320-332. Developers should initially determine if the project will cause any discharges to waters of the United States. If the project will not cause any discharges, a 404 permit is not required.
The only states responsible for administering 404 permits are Michigan and New Jersey. For projects located in any other state, the USACE administers 404 permits. Certain projects may qualify for one of the more expeditious general permits: Nationwide Permits, Regional General Permits, and Programmatic General Permits. Developers should contact the USACE district office where the project is located to ensure compliance with any district-specific requirements as part of a general permit. For projects that cannot meet the terms and conditions of a general permit require an individual permit.
Waste & Hazardous Material
All projects must comply with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Clean Water Act (CWA). CERCLA regulates the release of hazardous substances. The CWA has special requirements for certain aboveground storage tanks. Additionally, certain project sites that were previously contaminated by hazardous substances may be eligible for grants under the Small Business Liability Relief and Brownfields Revitalization Act (Brownsfield Act).
CERCLA compels the cleanup of hazardous waste and aims to hold the responsible party liable for cleanup costs. For any project that releases or possibly released a hazardous substance, the developer must notify the United States Environmental Protection Agency (EPA) and abide by the CERCLA process and procedures. For any projects that routinely generate, store, or dispose of hazardous substances, the developer should obtain a permit from the state hazardous waste management program.
Aboveground Storage Tank
For projects that utilize aboveground storage tanks, the EPA administers a Spill Prevention, Control, and Countermeasure (SPCC) program pursuant to Title 40 CFR 112 Oil Pollution Prevention as part of the Clean Water Act. Aboveground storage tanks subject to the SPCC requirement include:
“Non-transportation related onshore and offshore facilities drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil or oil productions with oil in above ground storage tanks which could discharge in quantities that may be harmful to navigable waters of the United States or adjoining shorelines.” 40 CFR 112.1
If the project does not utilize aboveground storage tanks within the above definition, a SPCC is not required.
The Brownfields Act seeks to assess, safely clean up, redevelop and reuse brownfield sites. “Brownfields” are defined by the Brownfields Act as “…real property, the expansion, redevelopment, or reuse of which may be complicated by the presences or potential presence of a hazardous substances, pollutant, or contaminant.” 42 USC 9601(39).
For projects on qualifying “Brownfield” sites, developers may be able to secure a brownfield grant that can help defray the costs of cleaning up land in preparation for the project. The grants can be useful due to the fact that the “Brownfield” land was likely less expensive to access than comparable non-brownfield land.
Policies & Regulations
- 14 CCR 15064.5: Determining the Significance of Impacts to Archaeological and Historical Resources
- 16 U.S.C. 470w
- 42 U.S.C. 6601
- 42 U.S.C. 6901 - Solid Waste Disposal Act
- 42 U.S.C. 7401 et seq. - Clean Air Act
- 42 U.S.C. 9601
- 42 U.S.C. 9604
- 42 U.S.C. 9607
- 43 U.S.C. §485h New Projects; Sale of Water and Electric Power
- 516 DM Chapter 12 Managing the NEPA Process National Park Service
- 516 DM Chapter 8 Managing the NEPA Process U.S. Fish and Wildlife Service
- 550 FW 3 Documenting and Implementing Decisions
- 550 FW 3 NEPA Decision Documents
- 7 U.S.C. 4201 et seq.
- ACHP - Consultation with Indian Tribes in the Section 106 Review Process: a Handbook
- ACHP - Meeting the "Reasonable and Good Faith" Identification Standard in Section 106 Review
- ACHP - Nationwide Programmatic Agreements
- ACHP - Recommended Approach for Consultation on Recovery of Significant Information from Archeaological Sites
- ACHP - Relationship of Section 106 to Other Laws
- ACHP - Section 106 Applicant Toolkit
- ACHP - Section 106 Regulations Flowchart
- ACHP - Section 106 Regulations Flowchart Explanatory Material
- ACHP's Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites
- Advisory Council on Historic Preservation - Section 106 Regulations
- Advisory Council on Historic Preservation website
- An Introduction to Electric Power Transmission
- Applicable EPA Regulations and Description Website
- Application for Department of the Army Permit: Engineering Form 4345
- Application for Nonpurposeful Eagle Take Permit
- Archaeological Resources Protection Act
- Army Corps of Engineers - Application for Department of the Army Permit
- Army Corps of Engineers - Instructions for Preparing a Department of the Army Permit Application
- Army Corps of Engineers - Regulatory Guidance Letters
- Avian Conservation Resources
- BLM - Information on Cultural Resource Use Permits webpage
- BLM - Instruction Memorandum No. 2009-167
- BLM - Instruction Memorandum No. 2012-140
- BLM - Instruction Memorandum No. OC-2012-005
- BLM - Paleontological Resource Use Permits webpage
- BLM - Paleontological Resources Use Permit Application
- BLM - Sage-Grouse and Sagebrush Conservation webpage
- BLM - State Protocol Agreement with Nevada
- BLM - Western BLM Bird Species of Conservation Concern List
- BLM Extraordinary Circumstances Checklist
- BLM Manual 8110 - Identifying and Evaluating Cultural Resources
- BLM Manual 8120 - Tribal Consultation Under Cultural Resources
- BLM Manual 8140 - Protecting Cultural Resources
- BLM Manual 8270 - General Procedural Guidance for Paleontological Resource Management
- BLM NEPA Handbook
- … further results