The Idaho Department of Lands (IDL) has jurisdiction over proposed projects that fall under the rules listed below:
- If the project encroached on or crossed navigable lakes,- Rules for the Regulation of Beds, Waters and Airspace Over Navigable Lakes in the State of Idaho would apply. A permit and/or lease would be required. Easements are possible in some cases.
- If the project encroached on or crossed navigable rivers, – Rules Governing Leases on State-Owned Submerged Lands and Formerly Submerged Lands would apply. A permit and/or lease would be required. Easements are possible in some cases.
In the two above scenarios, if easements were sought, then – Rules for Easements on State-Owned Submerged Lands and Formerly Submerged Lands would apply.
- If the planned activity required commercial logging to prepare a site for construction, the Forest Practices Act would apply to the actual logging activity. The Rules Pertaining to the Forest Practices Act.
- Any slash created as a result of logging would fall under- Rules Pertaining to the Idaho Forestry Act and Fire Hazard Reduction Laws.
- Any activities that start a forest fire could fall under – Rules Pertaining to Forest Fire Protection.
IDL has jurisdiction if proposed mining operations fall under the rules listed below:
- If there is a patented mining claim on state land – Idaho Surface Mining Act would apply and an IDL permit or lease may be required.
- If there is surface mining on state land – Rules Governing Exploration, Surface Mining, and Closure of Cyanidation Facilities would apply.
- If there is reclamation on state land – Rules Governing Administration of the Reclamation Fund would apply.
- If there is dredge or placer mining on state land – Rules for Dredge and Placer Mining in Idaho would apply.
Any proposal involving state endowment lands would most likely require a lease. The project would have to be formally proposed to the department. Due diligence would include examining the proposal to determine a fit with the highest and best use for the property and if it is in the best interests of the owning endowment(s). Any proposal would also require examination of proforma financial statements, business history, etc. Ultimately, approval of the State Board of Land Commissioners would be needed.
The Idaho Department of Fish and Game is entrusted with the responsibility to preserve, protect, perpetuate, and manage the fish and wildlife resources of the State for its citizens. This requires the Department to review and comment on a broad spectrum of development projects throughout the State regarding the potential effects on all fish and wildlife species and their associated habitats. The Department provides comments to the permitting entities and decision makers to assist with decisions related to various proposals. The Department also suggests options to avoid or mitigate a project’s potential for detrimental effects. The Department is responsible for issuance of scientific banding, collecting or possession permits for fish and wildlife pursuant to Idaho Code 36-106 e.5. These may be required for project studies and require four to six weeks for approval and issuance.
Energy Infrastructure Projects could also be impacted by the following:
- Idaho State Wildlife Action Plan, 2015, Idaho Department of Fish and Game.
- Sage Grouse Conservation and Management, Idaho Department of Fish and Game.
The Idaho Office of Emergency Management (IOEM) has no permitting or siting authority related to energy or mineral projects. However, the IOEM maintains emergency situational awareness related to disruptions in the provision of energy resources within the state or to those energy resources transiting the state for use within the Northwest/Intermountain regions. Additionally, the IOEM identifies and catalogues critical transmission infrastructure.
The Idaho Department of Water Resources (IDWR) has permitting authority over projects that require crossings or construction within a stream channel. Chapter 38, Title 42 of the Idaho Code vests authority in the Director of IDWR to accept applications to alter stream channels and approve the applications, if appropriate. The chapter also grants IDWR the authority to enforce the law against those who alter a stream channel without a permit. IDWR jurisdiction is limited to the area of the stream channel below the mean high-water mark. The channel must be of “perceptible extent, with definite bed and banks, which confines and conducts continuously flowing water.” Any excavation or fill in stream channels must be permitted.
If an excavation for a project exceeding 18 feet in depth is required for geotechnical testing, or for footing placement, it may be considered a “well.” A well is defined as “an artificial excavation or opening in the ground more than eighteen (18) feet in vertical depth below land surface by which ground water of any temperature is sought or obtained.” Prior to constructing a well, the proponent of drilling a well must obtain a drilling permit from IDWR.
Construction projects often require water for dust control or mixing construction materials. Because of the transient nature of construction projects, IDWR often issues temporary water rights to construction companies under Idaho Code 42-202A. Use under a temporary water right is limited to five acre-feet.
The Idaho Department of Parks and Recreation (IDPR) has an interest in projects that cross state park property, or projects that cross local, state or federal sites where the IDPR has provided grant funding for recreation. Restrictions enforced by IDPR on impacted lands require replacement of the affected property with recreation property of like value, or reimbursement for the value of the property. IDPR is also involved in mitigation negotiations regarding any property used by the public for recreation.
The Idaho Transportation Department (ITD) has jurisdiction over proposed projects that seek to utilize public road right-of-way on the Idaho State Highway System. ITD’s jurisdiction is based on the established standards of Idaho Code 40-310, 40-312, and 62-705. Idaho Administrative Code 39.03.42 and 39.03.43 also apply.
The request for use of the public road right-of-way on the Idaho State Highway System is identified in ITD’s Utility Accommodation Policy “Guide for Utility Management” (GUM). The project applicant submits a request to the ITD via the District to use the public road right-of-way b completing the Right-of-Way Encroachment Application and Permit for Utilities. District personnel review the application and within thirty days the District either approves or rejects the request. Approval may include additional requirements such as travel lane closures, night work, etc. Project applicants may appeal rejected applications in accordance with ITD’s Utility Accommodation Policy.
Issues that could delay the issuance or cause the rejection of the application are:
- The project applicant does not complete or provide all the information required by the application. For example, not providing a traffic control plan to safely handle traffic during utility operations.
- Permit(s) required from and issued by other regulatory entities.
- ITD does not have title to all public road right-of-way on the Idaho State Highway System. Some road right-of-way is owned by other entities (i.e. U.S. Forest Service, U.S. Bureau of Land Management, Indian Reservations, railroad owners, etc.) and separate permit(s) to use these lands is required from and issued by the other entities.
The Idaho Department of Environmental Quality (DEQ) environmental requirements applicable to major electric, pipeline or mineral projects are the responsibility of three DEQ Divisions:
- Air Quality: Issuance and enforcement of permits for emission sources and implementation of other state air quality requirements such as control of fugitive dust;
- Water Quality: Implementation of surface and groundwater water quality standards and requirements including issuance of issuance of wastewater-land application permits; issuance of Clean Water Act Section 401 certifications (to assure project subject to federal permits and approvals will meet state water quality standards) implementation of public drinking water requirements; provision of guidance for managing storm water;
- Waste Management and Remediation: Implementation of solid and hazardous waste requirements.
DEQ’s website provides detailed program descriptions, industry specific guidance, links to statutes and rules and contact information. Links are provided to DEQ’s authorizing statutes (Title 39, chapters 1, 36, 44, 71 and 74 of Idaho Code) and administrative rules (IDAPA 58.01.).
In general, no DEQ siting or overall project approvals or permits are applicable to electrical transmission, natural gas pipelines, or mineral development projects with the exception of Clean Water Act Section 401 certifications related to any federal permits or approvals that may be required. A number of DEQ requirements may apply to certain components or construction activities related to these projects. Specific DEQ requirements that may be applicable are outlined below by media/program (air, water or waste) and project (electrical transmission or natural gas pipeline).
Electrical Transmission Line Projects
No overall air quality approvals or permits are required for transmission lines or their installation. Specific equipment used in construction such as rock crushers or diesel generators may require permits (IDAPA 58.01.01). Construction activities are subject to fugitive dust control requirements (IDAPA 58.01.01.651).
Natural Gas Pipeline Projects
Same as above. In addition, natural gas turbines associated with compressor stations will require a PTC (permit to construct) prior to commencement of construction. The PTC permitting process for minor sources takes approximately 90 days. Gas turbines also require a Title V permit within a year of construction. (IDAPA 58.01.01). DEQ’s website provides detailed air permit applicability and processing information.
Specific equipment used in construction such as rock crushers or diesel generators may require permits (IDAPA 58.01.01). Construction activities are subject to fugitive dust control requirements (IDAPA 58.01.01.651). BART-eligible facilities are evaluated on a case-by-case basis according to IDAPA 58.01.01.
Electrical Transmission Line Projects
No overall water quality approvals or permits are required for transmission lines or their installation. However, to the extent the project or its components require a Clean Water Act Section 404 permit from the Army Corps of Engineers (ACOE) for the discharge of dredged or fill materials into navigable waters of the United States, the permit applicant must obtain a Clean Water Act Section 401 certification from DEQ that the project or component will not violate applicable water quality requirements. See DEQ’s 401 Certification process. Clean Water Act National Pollutant Discharge Elimination System, or NPDES, permits for point or storm water discharges to surface waters are administered in Idaho by the federal Environmental Protection Agency. However if a project requires a NPDES permit, the permit applicant must also obtain a 401 certification from DEQ.
Additional water quality permits and requirements may apply to any wastewater reuse (IDAPA 58.01.17), septic (IDAPA 58.01.03) or drinking water (IDAPA 58.01.02) systems necessary for the construction or operation of a transmission line. Construction activities are subject to best management practices and requirements to control impacts to surface waters (IDAPA 58.01.08).
Natural Gas Pipeline Projects
Same as above. In addition, the Federal Energy Regulator Commission (FERC) authorizes interstate natural gas pipelines. The FERC authorization, as well as any ACOE 404 dredge and fill permit or EPA NPDES permit, requires a Clean Water Act 401certification from DEQ.
Same as above. In addition, mining projects may need points of compliance determination from DEQ staff. IDAPA 58.01.13 lays out the procedures and requirements for ore processing by cyanidation facilities.
Electrical Transmission Line Projects
No overall waste management and remediation permits are required for transmission lines or their installation. Idaho has adopted statutes and rules governing management of certain aspects of hazardous and solid waste and underground storage tanks. DEQ is the state agency delegated responsibility by the US Environmental Protection Agency (EPA) to implement the federal Resource Conservation Recovery Act in Idaho. Solid wastes or hazardous wastes generated by construction or operation activities are subject to handling, storage and disposal requirements. (IDAPA 58.01.05and 58.01.06).
Natural Gas Pipeline Projects
Same as above.
Same as above.
The Idaho State Historical Society (ISHS) is involved on a review and consultation basis when proposed projects seek access to Federal land or require some level of Federal permitting. This review function is performed by a unit of the ISHS known as the State Historic Preservation Office (SHPO).
The SHPO works with Federal agencies in an effort to meet responsibilities under Section 106 of the National Historic Preservation Act. Section 106 requires Federal agencies to consider the effects on historic properties, e.g., significant historic buildings and structures, sites, trails, and archaeological properties. The Section 106 review process is a consultation and planning process that should be initiated early so that a project can be designed in a manner that avoids historic properties.
The role of the SHPO is to provide recommendations, professional opinions, and technical assistance to agencies on the review process. All decision-making authority remains with the Federal agency.
If a project requires archaeological excavation on state land the SHPO requires an excavation permit. The applicant must be a professional archaeologist pursuant to Idaho Code 67-4120 and present to the State Archaeologist a research and curation plan.
Generally, the Idaho Public Utilities Commission (PUC or Commission) does not exercise permitting or siting authority related to energy infrastructure projects. Occasionally as a prelude to seeking cost recovery for a transmission project, a public utility may request that the PUC issue a certificate of public convenience and necessity (CPCN) under Idaho Code 61-526. The PUC may issue a CPCN if it finds: 1) the present or future public convenience requires or will require the construction of a line, plant or system; and 2) the utility has the financial ability and good faith to serve its customers. The PUC may also attach reasonable terms and conditions to the CPCN. Idaho Code 61-528.
The PUC may exercise two forms of “backstop” permitting and siting authority. First, a local land use or permitting decision concerning a public utility may become null and void if such decision is in conflict with a specific order of the PUC, provided that the PUC has given the affected local government an opportunity to appear or consult with the Commission regarding such conflict. Idaho Code 67-6528. Second, the PUC has authority to issue a route certificate for transmission lines located in National Interest Electric Corridors designated by the U.S. Secretary of Energy. Idaho Code 61-1701 through 61-1709. The Commission may preempt local government land use or permitting decisions if the local government has: 1) denied a transmission application; 2) failed to timely act on a transmission application; or 3) has imposed unreasonable or uneconomical conditions on a transmission permit. Idaho Code 61-1703(3).
The Idaho Governor’s Office of Species Conservation (OSC) has an interest in any energy infrastructure projects that could potentially be placed in areas with endangered, threatened, candidate or petitioned species, as well as rare and declining species. OSC coordinates state implementation and response to federal recovery plans, biological opinions, guidance and projects among all state and local governments in the state of Idaho and negotiates agreements with federal agencies regarding threated or endangered species. OSC also coordinates funding resources for agencies and organizations for Endangered Species Act programs.
Transmission entities may have eminent domain authority under Idaho Code 7-701(11). Using the power of eminent domain for a transmission line in excess of 230 kilovolts on property devoted to agriculture require a public meeting with 10 days’ notice. Idaho Code 7-704(4).