Environmental Permitting in Tennessee
Constructing a large pipeline, water line, or transmission line project in Tennessee is exciting and challenging. But project planning is required to ensure all environmental permits are obtained prior to the pre-bid meeting.
Below is a checklist for Project Managers to scope the environmental permitting of linear Right-Of-Way (ROW) energy, mining, and utility projects in Tennessee:
- Environmental Permit Schedule – Determine the date needed for all permits. This is usually the date you need to advertise for construction bids.
- Environmental Scoping List – Prepare an environmental scoping sheet. Put on one page each permit needed and the agency requiring it. Major permits required include FERC certificates for interstate projects, US Corps of Engineers permits, and state 401 Water Quality Certification Permits. In Tennessee, the Department of Environment and Conservation (TDEC) uses the Aquatic Resource Alteration Permit (ARAP) permit process for 401 Water Quality Certification review.
- Environmental Permitting Budget – Put a not to exceed budget on the permit process and ensure the environmental consultant proposals come in at 90% of that cost. If not, can you modify the scope to fit the budget? If this is your first project with environmental permitting, request an overall environmental permitting budget from your consultant. Then, ask the consultant to follow up with a cost proposal once the route alignment is known.
- FERC Certificate – Engage FERC if its an interstate project for coordinating the FERC Certificate Process. Remember FERC also triggers NEPA requirements for an Environmental Assessment or Environmental Impact Statement.
- Corps of Engineers Permits – The US Corps of Engineers will generally require a Nationwide or Individual Permit if any dredge, fill, or horizontal boring is completed on, above, or beneath Section 404 or Section 10 jurisdictional resources. Jurisdictional resources are considered “Waters of the US”. If a Corps of Engineers permit is required, a federal permit including Section 7 (Endangered Species Act consultation) and Section 106 (National Historic Preservation Act consultation) is required as part of your permit application and process.
- TDEC ARAP Permit – A TDEC Aquatic Resource Alteration Permit (ARAP) is required for Section 401 Water Quality Certification of all projects requiring Corps of Engineers permits. US Corps of Engineers Section 404 and Section 10 Nationwide and Individual Permits require state 401 Water Quality Certification.
- TVA Permits – TVA 26a Permits are required for compliance with Section 10 of the Clean Water Act if work is conducted in a Section 10 waterway that may impact navigation. Impacts to navigation generally include in-stream structures but generally do not include horizontal directional drilling below Section 10 waterways.
- State Listed Species Surveys – State listed Rare, Threatened, and Endangered (RTE) species must be reviewed along the project route. RTE review is completed in Tennessee, generally at the request of the consultant, during the Section 404 permit preparation. RTE species impact from the project is assessed by the Tennessee Natural Heritage Program for rare plants and the Tennessee Wildlife Resource Agency for threatened and endangered species. The US Corps of Engineers requires a clearance letter from each prior to issuing the Section 10 or Section 404 Permit.
- Cultural Resource Surveys – A Phase I Cultural Resource Survey is required under federal permitting for compliance with the National Historic Preservation Act (NHPA) Section 106. The US Corps of Engineers Archaeologist assigned to the project generally will coordinate internally and with the State Historic Preservation Officer (SHPO) to determine whether any Section 106 protected resources may be impacted by the project. The impact to historic structures is reviewed by the Corps Archaeologist and may also involve consultation with the Tennessee Historical Commission for above grade structures and with the TDEC Division of Archaeology for below grade artifacts.
- Natural Resource Surveys – Natural resource surveys are walking surveys of the project alignment to assess the impact of the project on state and federally protected resources including wetlands, streams, and endangered species. Common natural resource surveys completed for linear projects include:
- Hydrologic Determination – a walking survey and scoring of watercourses within the ROW to determine whether they exhibit wet weather conveyance or stream characteristics using TDEC Hydrologic Determination Guidance. This information is needed in the TDEC ARAP process.
- Stream Survey – a walking survey of streams to record ordinary high water mark observation (OHWM). The OHWM observations are used by the US Corps of Engineers to determine if the waterways in the ROW are “Waters of the US”. This information is needed for the Section 404 and Section 10 Permit process.
- Wetland Delineation – a wetland delineation to determine the boundaries and acreage of “suspect” wetlands within the ROW. The wetland delineation survey uses the Army Corps of Engineers Wetland Delineation Guidance. Results of this wetland delineation may allow the proposed alignment to be adjusted for avoidance to protected wetlands and, if wetland impact is unavoidable, will be used to determine the wetland impact of the project.
- Biological Assessment – A Biological Assessment (BA) following USFW Service Guidance is completed to comply with Section 7 of the Endangered Species Act. Data from the BA is used to determine the impact of the project on each federally managed endangered species in the project area. The Indiana bat, the smoky madtom, and the copper iris are examples of endangered, threatened, or rare species requiring impact assessments in the BA.