What About a Wind Farm Project Triggers Section 106?

February 01, 2018

The ACHP has received a number of inquiries regarding the Section 106 responsibilities of federal agencies with regard to the development of on and off-shore wind farms. We are specifically asked what kinds of federal actions related to the development and operation of wind farms make such projects “undertakings” subject to Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations, “Protection of Historic Properties” (36 CFR 800). This provides some examples of the range of federal agency involvement in wind farms, and which federal actions, we believe, make those projects undertakings as defined in the Section 106 regulations and subject to Section 106 review. Ultimately, it is the responsibility of each federal agency to determine whether a proposed federal project or a non-federal project requiring federal assistance or authorization should be considered an undertaking subject to Section 106 review.

Some federal land managing agencies, such as the National Park Service, Department of Defense, and Veterans Administration, may carry out their own wind energy projects by installing one or more wind turbines to offset their own electrical energy requirements. All such federal activities should be considered undertakings subject to Section 106. The vast majority of wind energy projects are sponsored by non-federal entities and the federal involvement is more obscure. Based on ACHP staff experience, there does not appear to be any specific federal statutory authority for the siting, construction, and operation of wind energy facilities. However, numerous federal agencies have actions (grants or other assistance, permits, leases, or other authorizations) involving applicants that may require compliance with Section 106 for specific wind farm projects. Examples include the following:

  • The Corps of Engineers provides permits for impacts to the waters of the US pursuant to section 404 of the Clean Water Act and permits for obstructions in navigable waters pursuant to Section 10 of the Rivers and Harbors Act; 
  • The Environmental Protection Agency may consider issuing a Construction General Permit regarding run-off under the NPDES program, in those states that have not been delegated the permitting program;
  • The Department of Agriculture and Department of Energy may provide grant funding and loan guarantees that assist in development of such projects;
  • The Bureau of Ocean Energy Management, Regulation and Enforcement issues leases, easements, rights-of-way, and rights-of-use and easement on the U.S. Outer Continental Shelf (OCS) for the development and support of energy resources other than oil and gas;
  • Federal land managing agencies, such as the Bureau of Land Management and Forest Service, issue easements, leases, licenses, or permits to project proponents to explore, develop, and produce renewable energy on the federal lands they manage, including wind energy rights-of-way for site testing and project development.

Other federal agencies may have a more indirect involvement in the development and operation of wind farms. This would not necessarily make a project subject to Section 106 review, but under certain circumstances it might.

  • The Federal Aviation Administration (FAA) does not have authority over the construction or operation of wind farms but does have jurisdiction over the airspace into which wind turbines might project. The FAA reviews information about location, height, and other characteristics of the towers and setting of a proposed windfarm and then makes a determination about the potential for obstruction and hazard in navigable air space. Such determinations are considered advisory and ministerial, and do not make the project an undertaking subject to Section 106. If a proposed wind farm requires a modification of navigable airspace, FAA’s required evaluation of the potential redesign of navigable airspace would be a federal action that makes the proposed project an undertaking subject to Section 106 review. 
  • The Federal Energy Regulatory Commission (FERC) does not have authority over the construction or operation of power generating plants, such as wind farms, and has only limited jurisdiction over transmission line siting. The regulation of the construction and maintenance of power generating plants and transmission lines resides primarily with state Public Utility Commissions pursuant to the Public Utility Regulatory Policy Acts of 1978 (PURPA). Once electricity projects become operational, safety is regulated, monitored, and enforced by the applicable state agency. Only electric transmission facilities proposed to be located in National Interest Electric Transmission Corridors, as designated by the Department of Energy, are potentially eligible for a FERC permit. Under PURPA, FERC does provide certification of facilities such as wind farms as ‘Qualifying small power production facilities’ (QF). This certification does not trigger the requirements of Section 106, however. FERC’s statutes and regulations evidence that FERC’s role is purely ministerial. Operators of such facilities do not actually need the FERC certification to build them. Further, the certification action is merely a simple verification that the facility meets specified criteria. If the criteria are met, FERC has no discretion to deny the certification. Therefore, FERC certification of wind power facilities as QF under PURPA does not make the construction and operation of such a facility an undertaking subject to Section 106.
  • The Western Area Power Administration and Bonneville Power Administration, which operate in the western portion of the nation, may provide the electrical interconnection between wind farms and the power grids. Accordingly, they may have Section 106 responsibilities depending on a variety of factors. In a number of cases, the key issue is the federal agency’s decision whether a particular federal interconnection is a necessity for the otherwise private project to proceed (the “but for” question). In some cases, it may be appropriate for the federal agency to provide consulting parties and/or the public with a justification for its decision that a particular federal interconnection decision is not subject to Section 106.

This overview of federal involvement in wind projects summarizes the ACHP’s understanding of the nature and type of federal actions associated with the development of wind farms and when those actions make such projects subject to Section 106 review. If you have further questions regarding this issue, please contact the ACHP at jeddins@achp.gov.