Environmental Impact Review and Environmental Approvals Carolyn S. Kaplan, Esq. Nixon Peabody LLP Financing Wind Power: The Future of Energy July 25-27,

Environmental Impact Review and Environmental Approvals

Carolyn S. Kaplan, Esq.

Nixon Peabody LLP

Financing Wind Power:

The Future of Energy

July 25-27, 2007

Santa Fe, New Mexico

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Regulatory Framework

• Environmental Impact Review

• Federal– Water Resources

– Cultural Resources

– Fish & Wildlife

– Military/Aviation Security/Aviation Safety

– Federally Managed Lands

• State

• Local

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Environmental Impact Review

• National Environmental Policy Act (NEPA)

– Procedural statute

– Requires federal agencies to consider environmental factors in their decision-making process

• State review – “Little NEPAs”

• Regional review

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National Environmental Policy Act

• NEPA applies to “federal agency actions” such as– Federal permits or approvals

• Army Corps permit under Section 404 of Clean Water Act for discharge of dredged or fill materials into waters of the US

• Army Corps permit under Section 10 of the Rivers and Harbors Act for work in navigable waters of the US

• Fish & Wildlife Service Incidental Take Permit

– Granting rights to use federally managed land

– Access to federally owned transmission lines

– Federal grant monies

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Categories of Review

• Categorical Exclusions

– Do not have significant effects on the environment

• Environmental Assessment

– Vast majority of actions

– May result in a “Finding of No Significant Impact” or need to prepare “Environmental Impact Statement”

• Environmental Impact Statement (EIS)

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Summary of EIS Review Process

• Lead agency publishes Notice of Intent in Federal Register

• Determine scope of review

• Draft EIS

• Public and agency comments

• Final EIS

• Record of Decision (includes mitigation measures)

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States with “Little NEPA’ Statutes

• California • Montana

• Connecticut • Nevada/California-Tahoe

• District of Columbia • New Jersey

• Georgia • New York

• Guam • North Carolina

• Hawaii • Puerto Rico

• Indiana • South Dakota

• Maryland • Virginia

• Massachusetts • Washington

• Minnesota • Wisconsin

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Water Resources

• Clean Water Act (CWA)

– Section 404: Discharge of Dredged or Fill Materials

– Section 401: Water Quality Certification

– Section 402: National Pollutant Discharge Elimination System

• Section 10 of Rivers and Harbors Act of 1899

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Section 404 of CWADischarge of dredged or fill materials

• Regulates the discharge of dredged or fill material into waters of the US, including wetlands

• Waters of the US include:

– surface waters such as navigable waters, all interstate surface waters, and most natural lakes, rivers, streams (including intermittent streams), natural ponds, and all impoundments of these waters, as well as many tributaries and wetlands adjacent to other waters

• US Army Corps of Engineers administers program

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Section 404 of CWA (cont’d)

• Examples of activities that might require a permit:

– Clearing and grading

– Building project infrastructure, access roads, and collection systems

– Performing road work such as culvert replacements or intersection improvements

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Section 404 of CWA (cont’d)

• General Permits– 43 Nationwide Permits

• NWP 12 – utility line discharges

• NWP 14 – road crossings

– Regional/State Programmatic General Permits

– Minimal delay as long as permit conditions are satisfied

• Individual permits– Time consuming

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Section 401 of CWAWater Quality Certification (WQC)

• Ensures proposed project will comply with state or tribal water quality standards

• State reviews projects that require federal approval (e.g., Section 404 of CWA) and might result in discharge to state waters, including wetlands

• Review typically conducted during review of application for the federal permit

• State may issue a general WQC for a Nationwide Permit or Programmatic General Permit, or individual WQC may be required

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Section 402 of CWANPDES

• National Pollution Discharge Elimination System (NPDES)

– Regulates point sources that discharge pollutants into waters of the US

– “Point source” is a discernible, confined and discrete conveyance, such as a pipe, ditch, channel, tunnel, conduit, discrete fissure, or container

– EPA has delegated its authority to most (but not all) states and some Indian Tribes

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Section 402 of CWANPDES (cont’d)

• NPDES General Stormwater Permit for Construction Activities

– Land disturbances ≥ 1 acre (including smaller sites that are part of a larger common plan of development)

– Includes clearing, grading, excavation

– Operator must submit Notice of Intent

– Develop and comply with Stormwater Pollution Prevention Plan (SWPPP) including BMPs, inspection, monitoring

• Individual permit for construction activities

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Section 10 of Rivers and Harbors Act

• Applies to work in or over navigable waters of the US

• US Army Corps permit required for placement of structures that affect the course, location, condition, or capacity of navigable waters

• Examples:

– Building or replacing a bridge in a navigable waterway

– Creating a dock to receive materials via waterway

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Cultural Resources

• Section 106 of National Historic Preservation Act of 1966

– Protects historic properties listed or eligible for listing

– If a federal permit is required (e.g., Army Corps wetlands permit), Section 106 review will be part of the permit process

– Studies may be required to ensure no impacts to historic properties

• Other statutes protect archaeological and paleontological resources (e.g., Indian artifacts, fossils)

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Fish & Wildlife

• Endangered Species Act

• Migratory Bird Treaty Act

• Bald and Golden Eagle Protection Act

• US Fish & Wildlife Service Interim Guidelines

• Formation of Federal Advisory Committee

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Military/Aviation Security/Aviation Safety

• Any construction or alterations which may affect navigable airspace

• File Notice of Proposed Construction (Form 7460-1) with FAA

– Determination of No Hazard

– Notice of Presumed Hazard

• Radar

– New FAA tool for identifying Long Range Radar (not all radar)

– Dealt with on case by case basis

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Federally Managed Lands

• Approval process will vary by agency

– Bureau of Land Management

– Bureau of Indian Affairs/Indian Reservations

– Bureau of Reclamation

– USDA Forest Service

– Department of Defense

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State Regulatory Framework

• Process varies widely from state to state

• Examples:– Special siting statutes for power plants and transmission lines

– State environmental impact review

– Water quality certification

– Wetlands and waterways crossings

– Stormwater

– Historic preservation

– State endangered species laws

– Agricultural protection

– Model guidelines

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State Regulatory Framework (cont’d)

– Miscellaneous other state permits/approvals may be required, for example:

• Curb cut permits

• Permits for tree removal or scenic road improvements

• Consents to use former railroad property or rights-of-way

• Approval to site water wells

• Notice of demolition

• Compliance with state building codes

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Local Regulatory Framework

• Zoning

• Planning

• Building codes

• Locally owned land

• Payment-in-Lieu-of-Taxes (PILOT)

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Practice Tips

• Pre-application meetings with agencies can help to identify potential issues

• Early project modifications can often minimize scope of environmental impact review and permits required

• Federal requirements are a floor – states and local agencies may impose additional, more stringent requirements

• Failure to apply for necessary permits can cause project delays

• Failure to comply with permit conditions can result in costly enforcement

• One size fits all approach will not work – approach on a project specific basis

• Put together a qualified team and develop and implement a comprehensive strategy

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For more information contact:

Carolyn S. Kaplan, Esq.Nixon Peabody LLP100 Summer StreetBoston, MA 02110

617-345-1345

[email protected]

www.nixonpeabody.com