Section Discharge of Dredged or Fill Materials

Section 404 of the CWA (33 USC 1344) regulates a particular source of water pollution, specifically the discharge of dredged or fill material into waters of the United States, including wetlands. The USACE, rather than EPA, manages and administers the regulatory program (33 CFR 320331) and issues permit decisions. Section 404 requires a federal permit before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt from regulation. Examples of wind energy-related activities that might require a Section 404 permit include (but are not limited to) clearing and grading, building project infrastructure such as turbines, access roads, and collection systems, and performing road work, such as culvert replacements or intersection improvements.

Under Section 404, regulated waters of the United States include surface waters that are navigable waters and their tributaries, all interstate surface waters and their tributaries, natural lakes, all

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impoundments of these waters, and all wetlands adjacent to these waters. Wetlands generally include vegetated areas that are wet at least during some parts of the year such as swamps, marshes, bogs, and similar areas. The USACE uses the 1987 Corps of Engineers Wetlands Delineation Manual, regional supplements, and related guidance to identify and delineate wetlands under Section 404 of the CWA. The USACE manual organizes the characteristics of a potential wetland into three categories—soils, vegetation, and hydrology—and establishes criteria for each category.

If a wind energy project will involve construction in the vicinity of an area subject to Section 404, it may require a permit. The applicable USACE district office makes the final determination as to whether an area is jurisdictional (subject to the CWA) and whether the proposed activity requires a permit. If a permit is required, the USACE may issue either a general (national or regional) or individual permit.

Several recent U.S. Supreme Court and lower court decisions have addressed the issue of the extent to which the CWA covers isolated wetlands and tributaries (see e.g., Rapanos v. United States and Carabell v. United States (126 S. Ct. 2208 (2006)). In response to the Supreme Court decisions, USACE and EPA issued guidance clarifying which waters are subject to Section 404 of the CWA. New regulatory interpretations and their relevancy for compliance under Section 404 may be identified during consultation with the USACE.

General Permit - Discharges that have only minimal adverse impacts may be eligible for a general permit. General permits cover categories of activities the USACE has identified as being substantially similar in nature and causing only minimal individual and cumulative environmental impacts. The USACE issues general permits on a nationwide, regional, county, or state basis. General permits eliminate the individual review process and allow eligible activities to proceed with minimal delay provided the conditions of the general permit are satisfied. Some wind projects may not be able to satisfy the minimal disturbance criteria necessary to be eligible for a general permit.

There are currently 50 Nationwide Permits (NWPs) that address specific types of construction activities. NWPs are reissued every 5 years and were last issues in 2007. NWPs that typically apply to wind projects include NWP 12 (utility line discharges), NWP 33 (access roads), NWP 39 (commercial and institutional developments), and NWP 27 (wetland restoration). Different permits may apply to different components of a wind energy facility. However, USACE considers the total acreage of wetland affected by the entire project to determine whether a permit is

Recent U.S. Supreme Court and lower court decisions have addressed the issue of jurisdiction over wetlands. In response to the Supreme Court decisions, USACE and the EPA issued guidance clarifying which waters are subject to Section 404 of the CWA.


Example necessary. Consultation with the appropriate regional office is necessary to identify which permits apply to a particular project. Proposed work must satisfy the NWP criteria (e.g., limits on the area of project disturbance). Under some circumstances, the NWP requires the applicant to submit a Preconstruction Notification (PCN) to the USACE. It can take 45 to 90 days to complete the NWP process.

Regional permits address activities in a limited geographic area, typically a specific basin or watershed. Many states have chosen to pursue a Programmatic General Permit (PGP). PGPs enable states to simplify the regulation process, reduce duplicative regulatory programs, and preserve limited resources while protecting the aquatic environment.

Individual Permit - An individual permit is required for activities that have the potential to significantly impact surface waters and wetlands or if there is no NWP, regional permit, or PGP that covers the proposed activity. In addition, "Letters of Permission" are sometimes available when the proposed project involves a lesser degree of impact on aquatic resources and the project is non-controversial. The review process for an individual permit application can be time consuming, taking 6 to 12 months or longer, and can require costly studies and preparation of an EIS. If required, an individual Section 404 permit is frequently the last authorization obtained prior to construction. It may be possible to shorten the review process by requesting a pre-application consultation with the USACE and other federal, state, and local agencies involved in the review. The consultation allows for informal discussions about the proposal before an applicant makes irreversible commitments of resources. The process can assist the applicant in understanding the review criteria applied by USACE, assess whether there are any feasible alternatives, and provide a forum for discussing potential mitigation measures.

Failure to obtain and comply with a Section 404 permit when necessary can delay the project and result in potential liability. It is important that the developer and construction contractor review and understand the permit conditions. In addition to federal requirements, many states and some local municipalities also require permits for wetland and/or dredge and fill-related work (Section

4.1.5 Aviation

The Federal Aviation Administration (FAA) Office of Obstruction Evaluation and Airport Airspace Analysis is responsible for the safety of civil aviation. The FAA has jurisdiction over any object that may impact or interfere with the navigable airspace or communications technology used in aviation operations. Construction of wind turbines and meteorological towers often require FAA review.

The FAA requires a developer to file a Notice of Proposed Construction (NPC) (Form 7460-1) for any structure greater than 200 feet above ground level. In some circumstances, the filing of a Form 7460-1 may also be required for a structure less than 200 feet above ground level depending on the distinction and length of nearby runway. The NPC must include a plan for appropriate markings and lighting based on FAA requirements. Following receipt of FAA Form 7460-1, the FAA conducts a study process to determine whether the proposed action will create a hazard to navigable airspace. At the end of the process, the FAA issues either a Determination of No Hazard (DNH) or a Notice of Presumed Hazard (NPH). An NPH may initiate a process of negotiation and appeal. Form 7460-1 also requires a proposal for affixing appropriate markings and lighting to the wind turbines and met towers. Advisory Circular 70/7460-1K describes the kinds of markings and lighting applicable to airspace navigation.

Since most turbines exceed the 200-foot height criterion, and therefore trigger FAA review, developers must understand and comply with applicable FAA regulations. Consultation with the FAA during the completion of Form 7460-1 may help lead to a DNH.

The F.E. Warren Air Force Base in Wyoming erected two 660-kW turbines that are estimated to offset 4,855 tons per year of carbon dioxide and save the Air Force more than $3 million in energy costs over 20 years.



Renewable Energy 101

Renewable Energy 101

Renewable energy is energy that is generated from sunlight, rain, tides, geothermal heat and wind. These sources are naturally and constantly replenished, which is why they are deemed as renewable. The usage of renewable energy sources is very important when considering the sustainability of the existing energy usage of the world. While there is currently an abundance of non-renewable energy sources, such as nuclear fuels, these energy sources are depleting. In addition to being a non-renewable supply, the non-renewable energy sources release emissions into the air, which has an adverse effect on the environment.

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