The Icarus Solar Project: Public (and Private) Land Issue Impacts

The Icarus Solar Project:
Public (and Private) Land Issue Impacts
Constance Rogers
Davis Graham & Stubbs LLP
Denver, Colorado
Barbara Mueller
Davis Graham & Stubbs LLP
Denver, Colorado
The Icarus Solar Project: Public (and Private) Land Issue Impacts
INTRODUCTION
What’s the Fuss About Big Solar Projects?
Federal and state research has documented levels of solar radiation suitable for utilityscale solar power plant development on a significant portion of land administered by the BLM
in southern California, Nevada, Arizona, New Mexico, Colorado, and Utah. In connection with
initiatives of Congress and the Obama and Bush administrations to promote development of
renewable energy nationwide, the Department of the Interior under both Interior Secretaries
Salazar and Kempthorne has adopted policies and initiatives to help speed such development.
The BLM has received a large number of utility-scale solar energy right-of-way applications.
Under the Bush administration, Congress passed the Energy Policy Act of 2005, Public
Law 109-58 (EPAct). Section 211 of EPAct mandated the development of 10,000 MW 1 of nonhydropower renewable energy projects on public lands by 2015. Secretary Salazar has made it a
goal for the Department of the Interior to issue permits for a cumulative 9,000 MWs by 2011,
and a cumulative 10,000 MW by 2012. As of the end of 2010, almost 4,000 MWs have been
approved by BLM. Earlier this year, one such project was enjoined by a federal court in
California for failure to adequately consult with a nearby Indian tribe. Quechan Tribe v. United
States Department of the Interior, 10cv2241 LAB (CAB), 2010 WL 5113197 (S.D. Cal. Dec. 15,
2010). Another California project was stopped by BLM in early 2011 because of an
unanticipated level of impacts to the endangered Desert Tortoise. This project was given the go
ahead last month after additional mitigation was developed for the tortoise. 2 Getting the project
details, the environmental analysis and the stakeholder process right is key to preventing your
project from crashing and burning.
With the mythical “Icarus Solar Project” serving as guide, this presentation will provide
an overview of legal issues and practical concerns to be addressed when dealing with
development on public 3 and private lands. Our concentrating solar utility-scale Icarus Solar
Project is in fictional West Divide County, Colorado, located substantially on BLM –
administered land, with some potential use of adjacent State and private lands. To fully explore
the permitting aspects of such a project would take many volumes and a multitude of CLE hours;
therefore our discussion will focus on high level issue spotting and providing resources and
direction. Our outline below provides a description of the aspects of a “real” large-scale project
and the real permitting and approval issues that must be addressed before such a project can
proceed. Also included is a listing of relevant legal sources; a glossary of terms and some basic
forms.
1
Definitions of technical terms are located in the Glossary section at the end of the materials.
See http://www.blm.gov/ca/st/en/info/newsroom/2011/june/CASO-05.html (last visited June 20, 2011).
3
While this discussion is focused on solar projects, all federal (and many Indian) land projects involve many of the
same issues. This presentation focuses on BLM because most of the solar resource is on BLM-managed lands.
Similar legal issues are applicable to projects on U.S. Forest Service lands, including, for example, ski areas and
wind projects.
2
Mueller-Rogers – Page 1
PROJECT DESCRIPTION
Project Icarus
Icarus Solar, LLC (Proponent) is proposing to construct and operate the Icarus Solar
Energy Project (Project Icarus). Project Icarus includes the construction and operation of two
232-megawatt (MW) dry-cooled solar power plants equipped with thermal energy storage
capability and associated ancillary facilities. Facilities located within the Project area
would occupy approximately 5,425 acres and would include solar fields, power blocks, an office
and maintenance building, parking area, lay-down area, switchyard, and a stormwater detention
basin. The proposed Project is located on BLM-administered lands, approximately 40 miles
northwest of the town of Tabeguache, in the Solera Valley in West Divide County, Colorado.
Project Icarus would utilize parabolic trough solar thermal technology to produce
electrical power through steam turbines fed by solar steam generators. The largest element of a
parabolic trough power plant is the solar field. The solar field consists of numerous parallel
rows of solar collectors, arranged on a north-south axis. The solar collectors follow the path of
the sun from east to west during the day and concentrate the incident solar radiation 80-fold,
focusing it onto the receiver tube in the solar collector. The receiver tube contains a heat transfer
fluid (HTF, a temperature stable synthetic oil) in a closed circuit that can be heated to
temperatures of up to 752 degrees Fahrenheit (°F). Once heated, the oil is pumped to a centrally
located power block, where it flows through a heat exchanger.
The remainder of the process is similar to the steam cycle used in conventional power
plants. The steam generated by the heat exchanger drives a turbine connected to a generator,
which produces electricity. Unlike most photo-voltaic technology currently in use, in this
process the heat can be stored and used during periods of cloud cover and up to several hours
after sundown.
Thermal storage for each plant consists of molten salt systems in tanks. For charging the
storage, the salt is heated to approximately 726.8 °F, and for discharging it is cooled down again
to approximately 557.6 °F. The salt freezes at approximately 429.8 °F. Freezing of the salt must
be avoided to prevent damage of components. The freeze protection system, which uses the hot
HTF, keeps the salt at a minimum temperature of 500 °F.
The proposed Project will utilize a dry-cooling system for heat rejection from the steam
cycle consisting of a forced draft air-cooled condenser. The auxiliary cooling water system uses
a small wet-cooling tower to cool plant auxiliary equipment, including a lubrication oil cooler,
steam cycle sample coolers, and large pumps. The water picks up heat from the various
equipment items being cooled and rejects the heat to the cooling tower. An average of 130,000
gallons of water per day (108 acre-feet per year) will be consumed by the auxiliary cooling water
system; the maximum rate of consumption is 200,000 gallons per day in summer.
Mueller-Rogers – Page 2
Concentrated Solar Schematic
Source: BLM, 2010.
The auxiliary boiler and HTF heaters will be fueled by propane. Propane will be stored
in 18,000-gallon above-ground tanks (one in each power block).
In addition to the dry-cooling plant, water use for the Project includes water for solar
collector mirror washing, dust control, water for cooling plant auxiliary equipment, potable water
and fire protection. The average total annual water usage for the Project is estimated to be
approximately 500 acre-feet per year. Usage rates will vary and could be as much as 50 percent
higher in the summer months. Project Icarus proposes to meet its water needs by leasing
groundwater from 5 existing wells located on private land northwest of the site. The 5 wells
have associated water rights that are expected to adequately serve the Project without exceeding
their annual pumping average. A new pipeline will be constructed from the wells to the project
site.
Non-hazardous wastes, hazardous wastes and universal wastes will comprise the
Project’s waste stream. The nonhazardous solid wastes would be trucked to the nearest landfill,
a Class I landfill located in Tabeguache with no limit to the amount of daily waste. Nonhazardous liquid wastes would consist primarily of domestic sewage; a septic tank and leach
field would be installed.
Mueller-Rogers – Page 3
The HTF for the solar fields will be diphenyl/biphenyl oxide. This mixture is not
classified as a hazardous material by the USDOT, nor is it listed under EPA CERCLA
regulations. However, this material may be a hazardous waste under the Resource Conservation
and Recovery Act, 40 C.F.R. § 261.24. While the collector design has an excellent level of
performance and reliability, occasional small spills of HTF do occur. Spill management
procedures would be implemented to report, contain and clean up any accidental spills.
Fire protection systems will be provided to limit personnel injury, property loss, and
downtime in the event of a fire. On-site fire protection, designed in conformance with the
Colorado and West Divide County requirements, would be provided for the Project.
Project operation would require on-site nighttime lighting for safety and security. To
reduce offsite lighting effects, lighting at the facility would be restricted to areas required for
safety, security, and operation.
The Project will be staffed 24 hours a day, 7 days per week and will employ an estimated
workforce of 100 full-time employees.
The lifespan of the proposed Project is expected to span at least 30 years. At the end of
the Project’s useful lifespan, the facilities will either be repowered or decommissioned. Due to
the excellent solar resource at the Project site, repowering is a viable option.
Preliminary Facility Dimensions
Project Component
Solar Fields
Approximate Dimensions / Acreage
Two fields, Approximately 7,800 feet east-west
by 11,000 feet north-south.
Each field has a collector aperture area of
approximately 2 million square meters.
Power Blocks
Switchyard
Assembly Hall/Maintenance Building
Office
Parking Area
Stormwater Detention Basin
Evaporation Pond(s)
Bioremediation Area
(1,970 acres)
One power block located in the center of each solar
field; approximately 2,500 feet x 490 feet; 144 feet
high for a dry-cooled tower, or 55 feet high for a wetcooled tower (28 acres each)
400 feet x 400 feet (3.7 acres)
330 feet x 130 feet x 35 feet (1 acres)
100 feet x 30 feet x 12 feet (.06 acres)
250 feet x 100 feet (0.5 acres)
1,200 feet x 1,200 feet (33 acres) – providing 122-acrefeet of storage assuming 4-foot deep basin)
Up to two ponds; 800 feet x 1,250 feet each,
approximately 46 acres total
400 feet x 800 feet (7.3 acres)
Mueller-Rogers – Page 4
It is anticipated Project Icarus would be built in two separate phases, with the
construction of the first phase beginning in 2013. Project construction is expected to occur over a
total of 51 months.
Preliminary Issues
Water Resources: Several springs of regional importance lie outside of the immediate
Project area. These include more than 60 seeps and springs in the Aspen Meadows National
Wildlife Reserve, including Angel’s Oasis, a 40-acre unit of Heaven on Earth National Park.
Angel’s Oasis provides habitat for the only naturally occurring population of the endangered
Angel’s Oasis Pupfish (Cyprinodon angelis).
Dark Sky Issues: Nighttime lighting for the Project may increase light pollution and
affect visibility of the night skies in Heaven on Earth National Park, an area internationally
known as one of the darkest places in the continental United States and visited regularly by
amateur astronomers, a small but vocal stakeholder group.
Wildlife/Species Issues: The Project site is near the Aspen Meadows National Wildlife
Reserve, known for hosting numerous migratory bird species and raptors, including a significant
migratory population of Sandhill Cranes and resident breeding populations of Bald and Golden
Eagles. While wildlife studies have not been completed, portions of the valley floor could
provide Golden Eagle foraging habitat. In addition to eagles and other raptors, special status
species potentially affected by the Project are the endangered Angel’s Oasis Pupfish and Preble’s
Jumping Mouse. Populations of sage grouse are also suspected.
Cultural Resource Issues: The Project site sits in the Solera Valley, below Petroglyph
Bluffs, a site unusual in that it hosts several layers of prehistoric culture, beginning with early
Fremont petroglyphs, and containing some of the most northern reaches of Ancestral Puebloan
cliff dwellings, consisting mainly of small habitations and granaries. Aspen Meadows National
Wildlife Reserve also contains significant stands of aspen trees that have “arborglyphs” –
artwork and other tree carvings made by early Basque sheepherders. Some Ponderosa pine trees
have also been culturally modified by Ute Indians. There is discussion among local historical
societies about designating several of these areas as “traditional cultural places” because they are
still important to living communities. Based on the geology of the valley and known Fremont
and Ancestral Puebloan transportation routes, it is possible that portions of the Project site were
utilized by these cultures and subsurface artifacts could be uncovered during project
construction.
Paleontological Resources: The Project site includes occurrences of the Mastodon
Formation, a geologic formation that in other areas of Colorado have yielded significant
vertebrate fossil finds.
Native American Issues: The Project area is within the claimed traditional ancestral
homelands of several tribal groups, including the Ute, Arapahoe, Comanche, Navajo, Hopi,
Apache and Puebloan peoples.
Mueller-Rogers – Page 5
Transportation: The Project site is within 1.5 miles of U.S. Highway 378, a major northsouth transportation and trucking route. The Colorado Department of Transportation and the
Federal Highway Administration have expressed concerns about glare from the project
interfering with driving safety along this highway.
Transmission: The Heaven’s Gate transmission project, which is in early permitting
stages, would be one option to serve as offtake for the electricity generated by Project Icarus.
The Project developer is contemplating investing in Heaven’s Gate and there are concerns if the
projects are transactionally linked, that they may need to be considered together in one EIS,
thereby greatly complicating the requisite analysis. The Western Area Power Administration is
the lead agency for the Heaven’s Gate EIS, while BLM is the lead agency for the Icarus Project.
It is unclear how a combined EIS, if required, would be conducted. The Heaven’s Gate project is
currently proposed to utilize private land located immediately adjacent to and between the Sun
Salutations Wilderness Area within the Baby Doe National Forest and the Sagebrush Rebellion
National Monument.
SELECTED RELEVANT LAWS AND GUIDANCE
Introduction
Utility-scale projects present unique challenges due to their large land disturbance
footprint. Solar thermal projects also have a large water demand for cooling. It should go
without saying that the best areas for solar are some of the worst places for water supply. High
value solar areas often occur in fragile desert areas, where wildlife and endangered species are
already struggling. The large project footprint can eliminate large swaths of essential habitat for
such creatures.
Visual resource impacts can be a problem as these projects are not small, and by their
nature solar plants contain reflective mirrors and concentration panels. These impacts cannot be
mitigated in the usual ways. These and other project features have the potential to interfere with
military, aircraft and aviation navigation.
Most, if not all of such projects must go through the intensive scrutiny of an
environmental impact statement (EIS) prepared under the National Environmental Policy Act
(NEPA). Specific statutes, regulations and agency guidance dealing with a selected set of
potential issues are listed and briefly described below. A valuable source for agency guidance is
BLM’s Solar Energy website at http://www.blm.gov/wo/st/en/prog/energy/solar_energy.html.
As discussed below, solar energy development on BLM-administered lands can be
approved under Title V of the Federal Land Policy and Management Act (FLPMA) if the project
is consistent with BLM’s land use planning. The applicant is required to pay the BLM’s costs in
processing the application, and all projects require an environmental review under NEPA. If the
Mueller-Rogers – Page 6
project is approved, the BLM issues a right-of-way (ROW) 4 to the applicant for a specified term
(likely 20 to 30 years), and the applicant pays fair market value to rent the property from the
Federal government. 5
Not all BLM-administered lands are available for alternative energy production. Lands
designated as Wilderness Areas and Wilderness Study Areas, National Monuments, National
Conservation Areas, National Wild and Scenic Rivers, and National Historic and Scenic Trails,
are not open to solar energy development. In addition, some special management areas such as
Areas of Critical Environmental Concern may not be suitable for development.
Solar Programmatic Environmental Impact Statement
One other relevant ongoing process is currently mid-stream. Under NEPA, an agency
can prepare what is known as a “programmatic” EIS whereby the agency can look at the impacts
of a set of actions that are similar in nature to help the agency in planning and in evaluating
specific project proposals. The hope is that such programmatic documents can help streamline
the evaluation of specific project applications. To further agency review of solar project
proposals, the BLM and the DOE have initiated preparation of a joint programmatic
environmental impact statement (PEIS) to assess the environmental, social, and economic
impacts associated with solar energy development on BLM-managed lands in the states of
Arizona, California, Colorado, Nevada, New Mexico, and Utah (see http://solareis/anl/gov).
A draft PEIS was released on December 17, 2010, and the public comment period on this
document ended on May 2, 2011. BLM received over 80,000 comments. Part of the concept of
the Solar PEIS is to more intensively analyze an identified set of “Solar Energy Zones”, or
“SEZ.” The goal for this approach is to identify areas that have both an excellent solar resource,
and fewer conflicts with other land uses and other resources, such as wildlife, water, etc. If
successful, the Solar Energy Zones could be used as either a carrot or a stick. The stick approach
would be to reject applications for projects outside of the zones. The carrot approach would
likely be most effective, as the existing analysis would increase certainty in the permitting
process for developers, thereby encouraging development in such areas.
The proposed SEZs in Colorado are located in the San Luis Valley: the Antonito
Southeast SEZ consists of 9,729 acres in southeastern Conejos County; the De Tilla Gulch SEZ
is approximately 1,522 acres in Saguache County; the 3,882 acre Fourmile East SEZ is in
Alamosa County; the Los Mogotes East SEZ covers 5,918 acres in Conejos County. See below.
4
The non-exclusive ROW mechanism has been criticized for not providing adequate security of tenure. See e.g.,
“Renewable Power Projects on Federal Lands: Wind and Sun and the FLPMA Right-of-Way—is it Working?”
Energy Development, Special Institute, Paper 10, Rocky Mountain Mineral Law Institute (September 2009).
5
For BLM’s current rental policy, see
http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction/2010/IM_201
0-141.html (last visited June 20, 2011).
Mueller-Rogers – Page 7
Selected Relevant Federal Laws and Permitting Requirements
FLPMA
This presentation focuses largely on BLM-administered lands, since the federal solar
resource primarily is located there. With the exception of certain specialized laws dealing with
mineral development and other specialized uses, BLM manages the public lands under the
Federal Land Management and Policy Act of 1976, as amended, 43 USC §1701 et seq.
(FLPMA). The land use mechanism utilized for most renewable energy development, including
solar (but excluding geothermal, which is administered under the Geothermal Steam Act), is the
right-of-way. Under FLPMA Title V, BLM issues ROW grants for electrical power generation,
transmission and distribution systems, systems for the transmission and reception of electronic
signals and other means of communications, highways, railroads, pipelines (other than oil and
gas pipelines) and other facilities or systems which are in the public interest. BLM’s ROW
application form and template for an accompanying plan of development are attached as
Appendix A.
NEPA
Issuance of a ROW for a large-scale solar project is most likely a “major federal action”
under the National Environmental Policy Act (NEPA). 42 U.S.C. § 4332(C). Under NEPA,
federal agencies must take a “hard look” at the “environmental consequences” of a “major
federal action” prior to approving it. See e.g., Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.
1988). This “hard look” requires consideration of direct, indirect and cumulative impacts
“significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). In
reviewing the project proposal, the agency must consider alternatives to the proposed action,
consider how to avoid/mitigate impacts, and provide meaningful public participation in the
review process. Id. In the case of our Project Icarus, this almost assuredly means preparation of
an EIS. The White House Council on Environmental Quality has issued regulations for
implementing NEPA at 43 C.F.R. §§ 1500-1508. BLM’s NEPA Handbook provides valuable
insight into how BLM goes about preparing an EIS. It is available online at:
http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/blm_handbook
s.html.
Issues typically analyzed in a BLM-prepared EIS include the following resources:
- Air Quality
- Geological Hazards and Mineral Resources
- Soil Resources
- Water Resources
- Noise
- Vegetation Resources
Mueller-Rogers – Page 8
- Wildlife Resources
- Paleontological Resources
- Cultural and Historic Resources
- Socioeconomic Resources
- Environmental Justice
- Land Use, Recreation, Transportation and Access
- Visual Resources
- Hazardous and Solid Waste
- Energy Requirements and Climate Change
ESA
The Endangered Species Act of 1973 (ESA, 16 U.S.C. § 1531 et seq.) provides for the
conservation of federally listed plant and animal species and their habitats. The Endangered
Species Act directs federal agencies to conserve listed species, and imposes an affirmative duty
on these agencies to ensure that their actions are not likely to jeopardize the existence of a listed
species or destroy their habitat. Each species listed is required to have designated critical habitat.
Critical habitat is the specific geographic areas that are most essential for the conservation and
protection of a listed species.
There is an absolute prohibition under the ESA to “take” and endangered species. Take”
would include killing or harassing or depriving a species of habitat. If endangered species are
likely to be affected, the permitting agency will develop a biological assessment and make a
preliminary determination of whether or not the proposed project would “affect” an endangered
species. If so, it must consult with the U.S. Fish and Wildlife Service to identify mitigation
measures to avoid “jeopardy” to the species. This process could result in permit stipulations
prohibiting certain actions that could lead to jeopardy. If the Proponent stays within the confines
of these strictures (which usually prescribe the number of species individuals that could be killed
as result of the project in any given year, it is then immune from the penalty provisions of the
ESA that prohibit take.
NHPA
The National Historic Preservation Act requires Agencies to take into account the effects
of federal undertakings on properties eligible for listing on the National Register of Historic
Places. 16 U.S.C. 470 et seq. The agency evaluation process prescribed under the NHPA is
sometimes termed the “Section 106 process” because the obligations arise under Section 106 of
the original act.
Mueller-Rogers – Page 9
The NHPA empowered the Advisory Council on Historic Preservation to promulgate
regulations on the Section 106 process. They are located at 36 C.F.R. § 800 et seq. These
regulations set forth a sequential, four-step process which must be complete before a permit is
issued or federal funds provided. The four steps are: (1) identification, (2) assessment of effects,
(3) consultation, and (4) mitigation. Compliance usually involves archaeological field
assessments of the project area performed by expert third party archaeologists.
BGEPA
The Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668 et seq., applies
primarily to taking, hunting, and trading activities that involve Bald or Golden Eagles. The act
prohibits the “taking” of any individuals of these two species. Impacts to Bald or Golden Eagles
could occur if suitable habitat is present at or near a project site. BGEPA provides for civil and
criminal penalties for “take.” In 2009, the U.S. Fish and Wildlife Service established a
permitting program that authorizes limited take of Bald and Golden Eagles where the take is
associated with, but not the purpose of, otherwise lawful activities. See Eagle Permits; Take
Necessary To Protect Interests in Particular Localities, 74 Fed. Reg. 46,836 (Sept. 11, 2009).
MBTA
The Migratory Bird Treaty Act (MBTA) makes it unlawful to pursue, hunt, take, capture,
kill, or possess any migratory bird or part, nest, or egg of such bird listed in wildlife protection
treaties among the United States and other countries. 16 U.S.C. § 703 et seq. The current list of
species covered by the MBTA can be found in 50 C.F.R. §10.13. Because many migratory bird
species are commonly present in project areas (and in your backyard) the MBTA applies to those
bird species that may be affected during the construction and operation of a project. The MBTA
is a strict liability statute that carries civil and criminal penalties. Permits may be obtained under
the MBTA for certain limited purposes, see 50 C.F.R. Part 21, but are not available for incidental
take of migratory birds during otherwise lawful activities, such renewable power generation.
CWA
In some areas, stormwater construction permits may be required under the federal Clean
Water Act (CWA), 33 U.S.C. §1251 et seq., and state statutes before construction begins. The
CWA in Colorado is administered by Colorado Department of Public Health and Environment
(CDPHE), although the Army Corps of Engineers may have jurisdiction for certain types of
CWA permits.
CAA
The Clean Air Act (CAA), 42 U.S.C. Chapter 85, regulates air pollution. CAA
“Prevention of Significant Deterioration” classifications define the allowable increased levels of
air quality deterioration in specified areas. The CAA in Colorado is administered by CDPHE.
Mueller-Rogers – Page 10
Checklist for Federal Authorizations, Permits, Reviews, and Approvals
Action Requiring
Permit, Approval, or
Review
Temporary Land Use
Permit Form 2920
Permit/Approval or
Review
Accepting Authority/ Statutory Reference
Approving Agency
Temporary Use
Permit (preoperational activities
on BLM land)
Right-of-way Grant
BLM
43 USC 1201; 43
CFR Part 2920
BLM
FLPMA 1976 (PL 94579) USC. 1761-1771
and 43 CFR 2800
EIS and ROD
BLM
NEPA, 40 CFR Part
1500
et. seq.
National Historic
Preservation Act
Compliance to
Process Rights-ofway Application
Compliance with the
Endangered Species
Act
Section 106
Compliance or
Consultation
BLM
National Historic
Preservation Act of
1966, 36 CFR part
800; 16 USC 47
Review by BLM to
initiate Section 7
consultation
BLM/USFWS
Dredge or Fill
Activities in Waters
of the United States;
Dry Wash Crossings
Jurisdictional
Delineation Report
Concurrence,
Nationwide or
Individual Permit
No Hazard
Declaration required
if any structure is
more than 200 feet
Compliance with
federal hazardous
waste management
requirements
USACE
Endangered Species
Act Section 7
Consultation, 50 CFR
Part 17, 16 USC 1536
33 USC 1344
Federal Aviation
Administration
49 USC 1501, 14
CFR Part 77
EPA
40 CFR Part 124, 260,
and 270
If total aboveground
storage capacity of oil
is greater than 1,320
gallons, then a SPCC
Plan is required.
EPA – Office of
Emergency Services
40 CFR Part 112, and
Section 311(j) of the
Clean Water Act
Rights-of-way Over
Land Under Federal
Management; Form
SF-299
NEPA Compliance to
Process Right-of-way
Application
Project Component
Height Relative to Air
Traffic
U.S. Environmental
Protection Agency
(EPA) ID Number
Oil Pollution
Prevention –Spill
Prevention, Control,
and Countermeasure
(SPCC) Plan
Mueller-Rogers – Page 11
Action Requiring
Permit, Approval, or
Review
Review of Project for
its potential impact on
military over flights
and operations
Permit/Approval or
Review
Accepting Authority/ Statutory Reference
Approving Agency
Department of
Defense R 2508
Complex
Sustainability Office
US Department of
Defense
Department of
Defense
Selected Relevant Colorado State and Local Laws and Permitting Requirements
State Lands
Under C.R.S. §36-1-147.5, leasing arrangements for development of renewable energy
on State lands are to be administered by the State Board of Land Commissioners, and the Land
Board is actively pursuing renewable energy development on State trust lands. According to the
State Land Board website, www.trustlands.state.co.us there are currently four wind energy
productions leases covering 11,820 acres and 29 active renewable energy planning leases
covering 70,870 acres. The solar energy planning lease form developed on behalf of the State
Land Board is attached as Appendix B.
County and Local
Colorado currently has no centralized siting authority for renewable energy projects, so
an important portion of the permitting required for a solar project such as the Icarus Project
occurs at the county or local level. While some Colorado Counties have identified the
construction of major utility facilities as an activity of State interest (1041 regulations) and have
adopted land development codes to accommodate large-scale utility projects; other county codes
have changed little since the 1950’s. As the proposed SEZs in Colorado under the draft solar
PEIS are located in Conejos, Saguache and Alamosa Counties, we have used those counties’
regulations to illustrate potential requirements.
Selected Colorado State and County Requirements
Jurisdiction
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
Citation
Air Quality
Air Quality Control, C.R.S. §25-7-101 et seq.
N/A
N/A
N/A
Cultural Resources
Historical, Prehistorical and Archeological Resources, C.R.S.
§24-80-401 et seq.;
Unmarked Human Graves, C.R.S. §24-80-1301 et seq.
N/A
N/A
N/A
Mueller-Rogers – Page 12
Jurisdiction
State of Colorado 6
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
Citation
Ecological Resources
Nongame and Endangered Species Conservation, C.R.S. §332-101 et seq.;
Migratory Birds – Possession of Raptors- Reciprocal
Agreements, C.R.S. §33-1-115 et seq.;
Protection of Fishing Streams, C.R.S. §33-5-101 et seq.;
Colorado Natural Areas, C.R.S. §33-33-101 et seq.
N/A
N/A
Saguache Land Development Code, Wildlife, Art. XX
Energy Projects
Local Government Regulation –Location, Construction or
Improvement of Major Electrical or Natural Gas Facilities –
Legislative Declaration, C.R.S. §29-20-108;
Areas and Activities of State Interest, C.R.S. §24-65.1-401
Regulations for Site Selection and Construction of Major
Facilities of a Public Utility, Alamosa County Regulations,
Chapter 6
N/A
Resolution No. 90-LU15 (designating siting and construction
of major facilities of a public utility as an activity of State
interest);
Saguache County Land Development Code, Solar Energy
Facilities Guidelines 7
Floodplains and Wetlands
Drainage of State Lands, C.R.S. §37-30-101 et seq.;
Marsh Land, C.R.S. §37-33-101 et seq.
N/A
N/A
N/A
Groundwater, Drinking Water, Water Rights
Water Right Determination and Administration, C.R.S. §3792-101 et seq.;
Water Quality Control, C.R.S. §25-8-101 et seq.
N/A
N/A
Significant Groundwater Recharge Zones, Saguache County
Land Development Code, Art. XVIII
6
During the last session of the Colorado Legislature, SB11-208, concerning the consolidation of wildlife entities
with outdoor recreation entities under the Department of Natural Resources, was passed and signed into law by Gov.
Hickenlooper. While the consolidation is proceeding, it is likely there will be a degree of confusion and potential
delay in addressing these issues.
7
You can reach the Saguache County Master Plan, Code, 1041 Regulations and Solar Energy Facility Guidelines at:
http://www.saguachecounty.net/index.php?option=com_content&view=category&layout=blog&id=17&Itemid=137
Mueller-Rogers – Page 13
Jurisdiction
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
Citation
Hazardous Materials and Toxic Substances
Implementation of Title III of Superfund Act, C.R.S. §24-321601 et seq.;
Hazardous Substances, C.R.S. §25-5-501 et seq.;
Pollution Prevention, C.R.S. §25-16.5-101 et seq.
N/A
N/A
N/A
Hazardous Wastes
Hazardous Waste C.R.S. §25-15-101 et seq.
N/A
N/A
N/A
Land Use
Areas and Activities of State Interest, C.R.S. §24-65.1-101 et
seq.;
Local Government Land Use Control Enabling Act, C.R.S.
§29-20-101 et seq.;
County Planning, C.R.S. C.R.S. §30-28-101 et seq.;
(Municipal) Planning and Zoning, C.R.S. §31-23-101 et seq.;
Regulations for Development in Areas Containing or Having a
Significant Impact upon Natural Resources of Statewide
Importance, Alamosa County Regulations, Chapter 5;
Alamosa County Zoning and Subdivision Regulations
Conejos County Land Use Code, Use by Special Review
Industrial Development Requirements, Saguache County Land
Development Code, Art. IV.5, Special Use Permit;
Saguache County Land Development Code, Solar Energy
Facilities Guidelines [copy is attached as Appendix C]
Noise
Noise Abatement, C.R.S. §25-12-101 et seq.
N/A
N/A
N/A
Palentological Resources
Historical, Prehistorical and Archeological Resources, C.R.S.
§24-80-401 et seq.;
Paleontological Resources and Prehistoric Resources Reserved
to the State, C.R.S. §24-80-401
N/A
N/A
N/A
Mueller-Rogers – Page 14
Jurisdiction
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
State of Colorado
Alamosa County
Conejos County
Saguache County
Citation
Pesticides and Noxious Weeds
Pesticide Act, C.R.S. §35-9-101 et seq.
N/A
N/A
N/A
Solid Waste
Solid Waste Disposal Sites and Facilities, C.R.S. §30-20-100.5
et seq.
N/A
N/A
N/A
Source Water Protection
Water Quality Control, C.R.S. §25-8-101 et seq.
Regulations for Efficient Utilization of Municipal and
Industrial Water Projects, Alamosa County Regulations,
Chapter 3
N/A
N/A
Water Bodies and Wastewater
Water Quality Control, C.R.S. §25-8-101 et seq.;
Water and Wastewater Treatment Plant Operations, C.R.S.
§25-9-101 et seq.
N/A
N/A
N/A
Mueller-Rogers – Page 15
GLOSSARY FROM A TYPICAL ENVIRONMENTAL IMPACT STATEMENT
Acre-foot: A unit commonly used for measuring the volume of water; equal to the quantity of
water required to cover one acre (43,560 square feet or 4,047 square meters) to a depth of 1 foot
(0.30 meter) and equal to 43,560 cubic feet (1,234 cubic meters), or 325,851 gallons.
Action: In the context of the National Environmental Policy Act (NEPA), describes actions
proposed to meet a specific purpose and need and that may have effects on the environment,
which are potentially subject to Federal control and responsibility. Federal actions generally fall
into the categories of adoption of official policy, formal plans, and programs; or approval of
specific projects.
Affected environment: Existing biological, physical, social, and economic conditions of an area
subject to change, both directly and indirectly, as the result of a proposed human action.
Air quality: A measure of the health-related and visual characteristics of the air, often derived
from quantitative measurements of the concentrations of specific injurious or contaminating
substances.
Air Quality Standards: The level of pollutants prescribed by regulation that may not be
exceeded during a specified time in a defined area.
American Indian tribe (or tribe): Any American Indian group in the conterminous United
States that the Secretary of the Interior recognizes as possessing tribal status (listed periodically
in the Federal Register).
Aquatic: Growing or living in or near the water.
Aquifer: A water-bearing rock unit (unconsolidated or bedrock) that will yield water in a usable
quantity to a well or spring.
Archaeological site: A discrete location that provides physical evidence of past human use.
Area of Critical Environmental Concern (ACEC): A BLM designation pertaining to areas
where specific management attention is needed to protect and prevent irreparable damage to
important historical, cultural, and scenic values, fish or wildlife resources, or other natural
systems or processes, or to protect human life and safety from natural hazards.
Artifact: Any object showing human workmanship or modification, especially from a prehistoric
or historic culture.
Background (visual): That portion of the visual landscape lying from the outer limit of the
Middle ground to infinity. Color and texture are subdued in this area, and visual sensitivity
analysis here is primarily concerned with the two-dimensional shape of landforms against the
sky.
Mueller-Rogers – Page 16
Baseline: The existing conditions against which impacts of the proposed action and its
alternatives can be compared.
Basin: A depressed area having no surface outlet (topographic basin); a physiographic feature or
subsurface structure that is capable of collecting, storing, or discharging water by reason of its
shape and the characteristics of its confining material (water); a depression in the earth’s surface,
the lowest part often filled by a lake or pond (lake basin); a part of a river or canal widened
(drainage, river, stream basin).
Best management practices (BMPs): A suite of techniques that guide, or may be applied to,
management actions to aid in achieving desired outcomes and help to protect the environmental
resources by avoiding or minimizing impacts of an action.
Big game: Large species of wildlife that are hunted (such as elk, deer, pronghorn antelope).
Biological assessment: Information prepared by, or under the direction of, a Federal agency to
determine whether a proposed action is likely to (1) adversely affect listed species or designated
critical habitat; (2) jeopardize the continued existence of species that are proposed for listing; or
(3) adversely modify proposed critical habitat.
Biological opinion: A document that is the product of formal consultation, stating the opinion of
the U.S. Fish and Wildlife Service on whether or not a Federal action is likely to jeopardize the
continued existence of listed species or result in the destruction or adverse modification of
critical habitat.
Candidate species: A plant or animal species not yet officially listed as threatened or
endangered, but which is undergoing status review by the U.S. Fish and Wildlife Service.
Cooperating Agency: Assists the lead Federal agency in developing an environmental
assessment or environmental impact statement. The CEQ regulations implementing NEPA
define a cooperating agency as any agency that has jurisdiction by law or special expertise for
proposals covered by NEPA (40 CFR 1501.6). Any Federal, state, or local government
jurisdiction with such qualification may become a cooperating agency by agreement with the
lead agency. Tribes may become a cooperating agency for actions that occur on such Tribe’s
reservation.
Council on Environmental Quality (CEQ): An advisory council to the President established by
the National Environmental Policy Act of 1969. It reviews Federal programs for their effort on
environmental studies, and advises the President on environmental matters.
Cultural resources: Remains of human activity, occupation, or endeavor as reflected in districts,
sites, buildings, objects, artifacts, ruins, works of art, architecture, and natural features important
in human events.
Mueller-Rogers – Page 17
Cumulative effect (or impact): The impact on the environment that results from the
incremental impact of the action when added to other past, present, and reasonably foreseeable
actions. Cumulative impacts are evaluated as part of the environmental impact statement (EIS),
and may include consideration of additive or interactive effects regardless of what agency or
person undertakes the other actions.
Diversion: A channel, embankment, or other manmade structure constructed to divert water
from one area to another; the process of using these structures to move water.
Drainage: The natural or artificial removal of surface water and groundwater from a given area.
Many agricultural soils need drainage to improve production or to manage water supplies.
Drawdown: The decrease in elevation of the water surface in a well, the local water table or the
pressure head on an artesian well due to extraction of groundwater or decrease in recharge to the
aquifer.
Effect (or impact): A modification of the existing environment as it presently exists, caused by
an action (such as construction or operation of facilities). An effect may be direct, indirect, or
cumulative. The terms effect and impact are synonymous under the NEPA. A direct effect is
caused by an action and occurs at the same time and same place (40 CFR 1508.8(a)). An indirect
effect is caused by the action later in time or farther removed in distance, but still reasonably
foreseeable. Indirect effects may include growth-inducing effects and other effects related to
induced changes in the pattern of land use, population density or growth rate, and related effects
on air and water and other natural systems, including ecosystems.
Endangered species: A plant or animal that is in danger of extinction throughout all or a
significant portion of its range. Endangered species are rarely identified by the Secretary of the
Interior in accordance with the Endangered Species Act.
Environment: The surrounding conditions, influences, or forces that affect or modify an
organism or an ecological community and ultimately determine its form and survival.
Environmental Impact Statement (EIS): A document prepared to analyze the impacts on the
environment of a proposed action and released to the public for review and comment. An EIS
must meet the requirements of NEPA, CEQ, and the directives of the agency responsible for the
proposed action.
Environmental justice: The fair treatment and meaningful involvement of all people regardless
of race, color, national origin, or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies. Fair treatment means that no group
of people including racial, ethnic, or socioeconomic group should bear a disproportionate share
of the negative environmental consequences resulting from industrial, municipal, and
commercial operations or the execution of Federal, state, local, and tribal programs and policies
(see Executive Order 12898).
Mueller-Rogers – Page 18
Ephemeral wash or stream: A stream that flows only in direct response to precipitation in the
immediate watershed or in response to the melting of a cover of snow and ice and has a channel
bottom that is always above the local water table.
Federal Register: Published by the Office of the Federal Register, National Archives and
Records Administration, the Federal Register is the official daily publication for rules, proposed
rules, and notices of Federal agencies and organizations, as well as executive orders and other
presidential documents.
Fossil: Any remains, trace, or imprint of a plant or animal that has been preserved by natural
process in the earth’s crust since some past geologic time.
Geothermal resource: Heat found in rocks and fluids at various depths that can be extracted by
drilling or pumping for use as an energy source. This heat may be residual heat, friction heat, or
a result of radioactive decay.
Global warming: An increase in the average temperature of the earth’s atmosphere and oceans.
The term also is used to describe the theory that increasing temperatures are the result of a
strengthening greenhouse effect caused primarily by manmade increases in carbon dioxide and
other greenhouse gases.
Groundwater: Subsurface water that fills available openings in rock or soil materials to the
extent that they are considered water saturated.
Habitat: A specific set of physical conditions in a geographic area(s) that surrounds a single
species, group of species, or large community. In wildlife management, the major components of
habitat are food, water, cover, and living space.
Hydrology: The study of the movement, distribution, and quality of water throughout the earth,
addresses both the hydrologic cycle and water resources.
Impact (or effect): A modification of the existing environment as it presently exists, caused by
an action (such as construction or operation of facilities). An impact may be direct, indirect, or
cumulative. The terms effect and impact are synonymous under NEPA.
Indirect effect (or impact): Secondary effects that occur in locations other than the initial action
or later in time, but that are caused by the proposed action.
Intermittent: A river or stream that flows for a period of time, usually seasonally during rainy
periods, and stops during dry periods. In arid regions, dry periods may be interrupted by
occasional flash floods from brief but intense rain storms.
Invasive species: Describes a large number of nonnative plant species whose introduction causes
or is likely to cause economic or environmental harm or harm to human health.
Mueller-Rogers – Page 19
Issue: Describes the relationship between actions (proposed, connected, cumulative, similar) and
environmental (natural, cultural, and socioeconomic) resources. Issues may be questions,
concerns, problems, or other relationships, including beneficial ones. Issues do not predict the
degree or intensity of harm the action might cause, but simply alert the reader as to what the
environmental problems might be. The NEPA document should address issues identified through
interaction with agencies and/or the public, and/or through resource studies.
Land use plan: A plan or document developed by a government entity, which outlines specific
functions, uses, or management-related activities of an area, and may be identified in
combination when joint or seasonal uses occur and may include land used for support facilities
that are an integral part of the use.
Landscape: An area composed of interacting ecosystems that are repeated because of geology,
landform, soils, climate, biota, and human influences throughout the area. Landscapes are
generally of a size, shape, and pattern, which are determined by interacting ecosystems.
Megawatt: A unit for measuring power equal to one million watts. The productive capacity of
electrical generators is measured in megawatts.
Minimal (impact): Unless otherwise specified, “minimal” shall mean non-deleterious impacts
that are measurable on the short term, but not significant (see definition herein).
Mitigation: The abatement or reduction of an impact on the environment by (1) avoiding a
certain action or parts of an action, (2) employing certain construction measures to limit the
degree of impact, (3) restoring an area to preconstruction conditions, (4) preserving or
maintaining an area throughout the life of a project, (5) replacing or providing substitute
resources to the environment, or (6) gathering data (e.g., archaeological or paleontological) prior
to disturbance.
National Register of Historic Places: A listing, maintained by the Secretary of the Interior, of
districts, sites, buildings, structures, and objects worthy of preservation. To be eligible a property
must normally be at least 50 years old, unless it has exceptional significance, and have national,
State, or local significance in American history, architecture, archaeology, engineering, or
culture; and possess integrity of location, design, setting, material, workmanship, feeling, and
association; and (a) be associated with events that have made a significant contribution to the
broad patterns of history, (b) be associated with the lives of persons significant in our past, or (c)
embody the distinctive characteristics of a type, period, or method of construction; represent the
work of a master; possess high artistic values; or represent a significant and distinguishable
entity whose components may lack individual distinction; or (d) have yielded, or may be likely to
yield, information important to prehistory or history.
Negligible (impact): Unless otherwise specified, “negligible” shall mean impacts of such a small
scale such as to be non-measurable.
Mueller-Rogers – Page 20
Noxious weed: Nonnative plant species that negatively impact crops, native plant communities,
and/or management of natural or agricultural systems. Noxious weeds are officially designated
by a number of states (including Colorado) and Federal agencies.
Perennial stream: A stream or that part of a stream that flows continuously during all of the
calendar year as a result of groundwater discharge or surface runoff.
Perennial yield: The amount of usable water from a groundwater aquifer that can be withdrawn
economically and consumed each year for an indefinite period of time. It cannot exceed the
natural recharge to that aquifer and ultimately is limited to maximum amount of discharge that
can be used for beneficial use.
Prime farmland: A special category of highly productive cropland that is recognized and
described by the U.S. Department of Agriculture’s Soil Conservation Service and receives
special protection under the Surface Mining Law of 1977.
Project area: Footprint of the project.
Public land: Land or interest in land owned by the United States and administered through the
Secretary of the Interior through the BLM without regard to how the United States acquired
ownership, except lands on the Outer Continental Shelf, and land held in trust for the benefit of
American Indians, Aleuts, and Eskimos.
Recharge: Replenishment of a groundwater reservoir (aquifer) by the addition of water, through
either natural or artificial means.
Reclamation: Restoration of land disturbed by natural or human activity (e.g., mining, pipeline
construction) to original contour, use, or condition. Also describes the return of land to
alternative uses that may, under certain circumstances, be different from those prior to
disturbance.
Record of Decision: A document separate from, but associated with, an EIS that publicly and
officially discloses the responsible official’s decision on a proposed action.
Region of Influence: Area which is impacted by activities related to the project. Varies by
species and activity, however, for this project it has been defined as the hydrographic unit.
Reservation: Land set aside to achieve a particular land use or conservation objective. For the
purposes of this document, reservation refers to those lands managed by an American Indian
tribe under the U.S. Department of the Interior‘s Bureau of Indian Affairs. The reservation land
is Federal territory held in trust for tribes. The American Indian tribes have limited national
sovereignty.
Riparian: Referring or relating to areas adjacent to water or influenced by free water associated
with streams or rivers on geologic surfaces occupying the lowest position of a watershed.
Mueller-Rogers – Page 21
Pertaining to, living or situated on banks of rivers, streams, or other body or water. Normally
used to refer to the plants of all types that grow along, around, or in wet areas.
Scoping: The process open to the public early in the preparation of an EIS for determining the
scope of issues related to a proposed action and identifying significant issues to be addressed in
an EIS.
Screen: An initial assessment performed with few data and many assumptions to identify
alternatives that should be evaluated more carefully.
Sensitivity: The state of being readily affected by the actions of external influence.
Significant (impact): Unless otherwise specified, “significant” has been used in this document
to describe any impact that would cause an impact that is irreversible and/or irretrievable without
human intervention (i.e., mitigation/restoration)
Special Development Area: sets aside public or private areas of special interest that would be
subject to a specific plan of development or a Development Agreement in accordance with West
Divide County Code Title 16.32. SDA is a mixed-use designation and a variety of land uses
might be proposed for approval, such as projects under review by the Bureau of Land
Management, such as the Solar Energy Facilities. A property owner/developer must provide a
specific plan of development for the subject property and obtain recommendations from the
Planning Committee and the Town Advisory Board prior to West Divide County Commission
approval.
Special status species: Wildlife and plant species either federally listed or proposed for listing as
endangered or threatened; state-listed; or priority species of concern to Federal agencies or tribes.
Surface water: All bodies of water on the surface of the earth and open to the atmosphere such
as rivers, lakes, reservoirs, ponds, seas, and estuaries.
Threatened or Endangered Species: Animal or plant species that are listed under the Federal
Endangered Species Act of 1973, as amended (federally listed), or under similar state laws
(statelisted).
Traditional cultural places: These named places (landscape features) comprise the cultural
landscape that provides the context for evaluating specific traditional cultural properties.
Transmissivity: The rate at which water is transmitted through a unit width of the aquifer under
a unit hydraulic gradient.
Tribe: Any Indian tribe, band, group, or community having a governing body recognized by the
Secretary of Interior.
Undertaking: A project, activity, or program funded in whole or in part under the direct or
indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal
Mueller-Rogers – Page 22
agency; those carried out with Federal financial assistance; those requiring a Federal permit,
license, or approval; and those subject to State or local regulation administered pursuant to a
delegation or approval of a Federal agency.
Visual resource management classes: Categories assigned to public lands based on scenic
quality, sensitivity level, and distance zones. There are four classes, each of which has an
objective that prescribes the amount of change allowed in the characteristic landscape. Waters of
the United States: All waters that are currently used, were used in the past, or may be susceptible
to use in interstate or foreign commerce including adjacent wetlands and tributaries to water of
the United States; and all waters by which the use, degradation, or destruction of which would
affect or could affect interstate or foreign commerce.
Watershed: All land and water within the confines of a drainage divide.
Wetlands: Areas that are inundated or saturated by surface water or groundwater at a frequency
and duration sufficient to support, and that under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated soil conditions. Examples of wetlands include
marshes, shallow swamps, lakeshores, bogs, muskegs, wet meadows, estuaries, and riparian
areas.
Wilderness: An area formally designated by Congress as part of the National Wilderness
Preservation System.
Mueller-Rogers – Page 23