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Vermont State Fish and Wildlife License Conditions and Recommendations (12-VT-a)

The Federal Power Act (FPA) requires the Federal Energy Regulatory Commission (FERC) to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. 18 CFR 5.1(d); 18 CFR 4.38.


The Vermont Agency of Natural Resources (ANR) is Vermont’s state agency with primary responsibility for protecting Vermont’s environment, natural resources and wildlife. The Vermont Department of Environmental Conservation (DEC) and the Vermont Department of Fish and Wildlife (DFW) represent two departments operating within the ANR. The DEC is dedicated to the preservation, enhancement, restoration and conservation of Vermont’s natural resources. The DFW is dedicated to “the conservation of fish, wildlife and plants and their habitats for the people of Vermont.”

The DFW and the DEC actively participate in FERC licensing and exemption processes by (in addition to consulting with other resource management agencies and reviewing Water Quality Certification applications) working collaboratively to issue to FERC mandatory conditions or recommendations designed to protect, mitigate damage to, and enhance Vermont’s fish and wildlife resources. 16 USC 803. The DFW and DEC (hereinafter collectively referred to as “ANR”) work collaboratively to review the potential impacts of a proposed hydropower project on fish or wildlife species and to issue such conditions and recommendations.


State Fish and Wildlife License Conditions and Recommendations Process

12-VT-a.1 – Is the Project Exempt from FERC licensing?

The FPA authorizes the ANR to issue mandatory terms and conditions for hydropower projects that are exempt from FERC licensing. 16 USC 823a(c).

For hydropower projects subject to FERC licensing, the FPA grants the ANR authority to issue recommendations for the FERC license. 16 USC 803(j).

12-VT-a.2 – Develop Section 30(c) Conditions

For hydropower projects that are exempt from FERC licensing, section 30(c) of the FPA authorizes the ANR to issue mandatory conditions, as appropriate, in order to prevent the loss of or damage to fish and wildlife resources. 16 USC 823a(c). The ANR analyzes the impacts of the hydropower project on fish and wildlife resources as part of the Water Quality Certification process. See Flowchart 14-VT-d.

12-VT-a.3 – 30(c) Conditions

Based upon the ANR’s Water Quality Certification analysis, the ANR develops the section 30(c) conditions to be incorporated in the FERC licensing exemption. In developing the section 30(c) conditions, the ANR considers (among other things):

  1. Vermont’s rare, threatened and endangered species;
  2. Fish life-cycle requirements;
  3. Habitat requirements of aquatic life; and
  4. Instream-flow requirements of aquatic life.

FERC must include all section 30(c) conditions in the FERC licensing exemption, provided the conditions are issued by the ANR in a timely manner. 16 USC 823a(c); 18 CFR 4.34(f).

After FERC issues the exemption, FERC will monitor the developer’s compliance with the terms and conditions of the licensing exemption. 16 USC 823b(a).

12-VT-a.4 – Will the ANR Issue Section 10(j) Recommendations?

For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes the ANR to issue (non-mandatory) recommendations to FERC in order to protect, mitigate damage to, and enhance fish and wildlife species and their necessary habitat. 16 USC 803(j). The ANR generally analyzes the potential impacts of the hydropower project on fish and wildlife species and their habitat as part of the Water Quality Certification Process. (See Flowchart 14-VT-d). However, the ANR may elect to file Section 10(j) recommendations if issues involving fish and wildlife species and their habitat remain unresolved (i.e., studies are ongoing).

12-VT-a.5 – Initiate Section 10(j) analysis

If the ANR elects to issue Section 10(j) recommendations, the ANR will review the administrative record and consider (among other things):

  1. Vermont’s rare, threatened and endangered species;
  2. Fish life-cycle requirements;
  3. Habitat requirements of aquatic life; and
  4. Instream-flow requirements of aquatic life.

12-VT-a.6 to 12-VT-a.7 – Are Additional Documents or Studies Needed?

If the record is incomplete, the ANR may request that the developer provide additional documents or conduct additional studies to address information gaps concerning (among other things) baseline values or the potential impacts of the proposed project on fish and wildlife species.

12-VT-a.8 to 12-VT-a.9 – 10(j) Recommendations

Based upon the ANR’s review of the hydropower project and analysis of any study results, the ANR develops section 10(j) recommendations for the FERC license. 16 USC 803(j).

In developing the section 10(j) recommendations, the ANR strives to maintain consistency with any conditions included in the Water Quality Certification, issued by the DEC. (See Flowchart 14-VT-d – 401 Water Quality Certification).

The ANR’s recommendations may include (among other things) measures addressing habitat protection, instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.

The ANR submits its section 10(j) recommendations to FERC. FERC must consider and accept any recommendations received from the ANR for the protection, mitigation, and enhancement of fish and wildlife affected by the project unless FERC determines that:

  1. A recommendation is inconsistent with the purposes and requirements of the FPA or other applicable provisions of law; and
  2. The alternative conditions selected by FERC comply with the requirement to adequately protect, mitigate damages to, and enhance fish and wildlife.

16 USC 803(j).

Once FERC issues a FERC license, the ANR continues to monitor the project to ensure the developer’s compliance with any license conditions relevant to the protection, mitigation, and enhancement of fish and wildlife.




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Edit Vermont Department of Fish and Wildlife
Fish and Wildlife Hydropower Lead
802-595-5179
rodabbazabbawentworth@vermontabbazabbagov
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