Hydropower Biological Resource Assessment Overview (12)
Federal and state laws protect certain biological resources from particular impacts. Each project is required to assess the impacts it may have on protected flora and fauna as well as impacts on their habitat.
Vegetation and topsoil removal during facility construction, including the development of associated access roads, parking areas, transmission lines, can lead to loss of wildlife habitat, reduction in plant diversity, potential for increased erosion and the potential for the introduction of invasive or noxious weeds. Indirect impacts to vegetation could increase deposition of dust, spread of invasive or noxious weeds, and the increased potential of wildfires. In addition, adverse impacts to wildlife could occur during construction from:
- Erosion and runoff;
- Fugitive dust;
- Introduction and spread of invasive vegetation;
- Modification, fragmentation, and reduction of habitat;
- Exposure to contaminants; and
- Interference with behavior activities.
Wildlife would be most affected by habitat reduction within the project site, access roads, canals, and pipeline and transmission right-of-ways. Wildlife within surrounding habitats might also be affected if the construction activity (and associated noise) disturbs normal behaviors, such as feeding and reproduction. In addition, construction of intake structures, dams, and weirs can significantly alter the river that would provide water supply for the hydropower facility. These alterations could lead to habitat loss and/or degradation for aquatic species. Construction of the intake or dam could also harm aquatic populations either from the construction equipment or materials themselves, or increased sedimentation downstream. These impacts could be minimized by timing construction during periods of low flow and by excluding fish from the work area.
Typically developers must consider: species listed under the federal Endangered Species Act, or designated as “candidates” for federal listing; migratory birds protected by the Migratory Bird Treaty Act; eagles protected by the Bald and Golden Eagle Protection Act; mammals protected by the Marine Mammal Protection Act; and any protected habitat. These species are protected because they offer rare qualities or adaptations that complete the native ecosystem.
State level protections may be even more stringent, protecting species and habitat not protected under federal law. It is critical to consult with area experts early in order to determine whether a conflict with protected biological resources can be avoided by choosing an alternative site for development. It may also be helpful to determine a time of year for development that does not conflict with wildlife.
Biological Resource Assessment Overview Process
12.1 - Conduct Preliminary Screening To Identify Potentially Affected Biological Resources
Developers should use some mechanism to conduct a preliminary screening that identifies biological resources that may be affected by the project. For example, the Western Governors' Association (WGA website) has a Crucial Habitat Screening Tool (CHAT), available at the CHAT website. While not mandatory, this step can help identify major biological issues at the outset that could critically affect the project. In addition, conducting a preliminary screening can help determine whether subsequent biological surveys or compliance steps are necessary.
12.2 - Conduct Biological Assessment as Needed To Identify Potentially Affected Biological Resources
By regulation, a biological assessment is prepared for "major construction activities" considered to be federal actions significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). A major construction activity is a construction project or other undertaking having similar physical impacts, which qualify under NEPA as a major federal action. Major construction activities include dams, buildings, pipelines, roads, water resource developments, channel improvements, and other such projects that modify the physical environment and that constitute major federal actions. As a rule of thumb, if an Environmental Impact Statement is required for the proposed action and construction-type impacts are involved, it is considered a major construction activity.
A biological assessment is required if ESA listed species or critical habitat may be present in the action area of a major construction activity. It is optional if only proposed species or proposed critical habitat is involved. However, if both proposed and listed species are present, a biological assessment is required and must address both proposed and listed species if the action agency determines the action is likely to jeopardize the proposed species or adversely modify/destroy proposed critical habitat. An assessment may be recommended for other activities to ensure the agency's early involvement to increase the chances for resolution during informal consultation.
12.3 - Supply Species List
Upon written request, the Fish and Wildlife Service and/or the NOAA Fisheries, also known as the National Marine Fisheries Service (NMFS), must provide the developer with a list of ESA-listed resources within the action area.
12.4 to 12.5 - Is There Potential for the Activity To Take Migratory Birds or Eggs?
The developer should consult with the FWS to determine the presence of migratory birds and habitats that could potentially be impacted by the proposed activities for birds of conservation concern.
A list of bird "Species of Concern" identified by the US FWLS Migratory Bird Program Strategic Plan 2004-2012 can be found as an attachment to BLM's Instruction Memorandum.
In addition, although not currently mandated by law – the FWS is also using a similar assessment and permit process where the project may result in the taking of bats. Thus, developers with projects in areas that may result in the taking of bats are encouraged to consult with the FWS.
12.6 to 12.7 - Are There Any Bald or Golden Eagle Activities Present at the Project Location?
If the proposed project location contains a nesting or wintering bald or golden eagle, then the developer will be required to obtain a Bald & Gold Eagle Permit. In addition, any evidence of bald or golden eagle activities at the project location will likely require a Bald and Golden Eagle Permit.
12.8 to 12.11 - Is There Potential To Impact Marine Mammals or Their Habitats?
The Marine Mammal Protection Act of 1972 (MMPA), as amended (USC 1361 et seq.), prohibits, with certain exceptions, the taking (e.g., harassment, injury, or killing) of marine mammals in U.S. waters and by U.S. Citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.).
Sections 101(a)(5)(A) and (D) of the MMPA may allow for the authorization of the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings shall be granted if the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsidence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.
12.12 to 12.13 – Are There Federal Listed Species or Critical Habitats?
Under the Endangered Species Act, the term ‘‘endangered species’’ means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man. Endangered Species Act, 16 U.S.C § 1532 (6). A “threatened species” means a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. For the most part, terrestrial or land-based species are under the jurisdiction of FWS, and marine species and anadromous fish are mostly under the jurisdiction of NOAA Fisheries.
Under Section 7 of the Endangered Species Act, federal agencies are required to ensure that any actions they undertake do not jeopardize the existence of any listed species, or destroy or adversely modify designated critical habitat of such species. If a listed species or critical habitat may be present and affected, the agency must provide the NOAA Fisheries or the Fish and Wildlife Service with an evaluation on the likely effects of the action on species that may be adversely affected. The ESA Section 7 consultation requirements apply to development projects that have a federal nexus, such as a permit or license. All hydropower development requiring a FERC authorization establishes a federal nexus.
12.14 – Review License Conditions and Recommendations Processes
Under section 30(c) of the FPA, the U.S. Fish and Wildlife Service (FWS), NOAA Fisheries, and state fish and wildlife agencies may issue mandatory terms and conditions for hydropower projects that are exempt from the FERC licensing process in order to prevent the loss of, or damage to, fish or wildlife resources. 16 USC 823a(c).
Under section 10(j) of the FPA, the U.S. Fish and Wildlife Service (FWS), the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries), and state fish and wildlife agencies may issue recommendations, which FERC must consider, for the protection, mitigation, and enhancement of fish and wildlife that might be affected by a hydropower project. 16 USC 803(j).
If a hydropower project may affect the passage of fish species present within the project area (or species planned for introduction into the area), Section 18 of the FPA further authorizes the FWS and NOAA to prescribe mandatory fish passage improvements to ensure the safe, timely, and effective passage of fish. 16 USC 811.
U.S. Fish and Wildlife Service
State Fish and Wildlife Agencies
The Alaska Department of Fish and Game (ADF&G) is Alaska’s state agency with primary responsibility for protecting, maintaining, and improving the fish, game, and aquatic plant resources of the state and to manage their use and development in the best interest of the economy and the well-being of the state, consistent with the sustained yield principle. AS 16.05.020.
The ADF&G actively participates in FERC licensing and exemption processes by (in addition to consulting with other federal, state, and tribal resource management agencies and reviewing Water Quality Certification applications) reviewing proposed hydropower projects and issuing to FERC recommended terms and conditions designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. For more information, see:
The California Department of Fish & Wildlife (CDFW) is California’s state agency dedicated to the conservation, protection, and management of fish, wildlife, and native plant species, and the habitat necessary to support biologically sustainable populations of those species. California Department of Fish and Wildlife: Federal Energy Regulatory Commission (FERC) Hydroelectric Projects. The CDFW participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process, such as the California State Water Resources Control Board (SWRCB)) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or a defensible set of recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. For more information, see:
The Colorado Parks and Wildlife (CPW) is the state agency charged with the management of Colorado’s wildlife and wildlife areas. The CPW participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. The Colorado Wildlife Commission encourages an approach that (considering the potential impacts to wildlife, wildlife habitat, and the potential for habitat fragmentation) balances energy development with wildlife conservation. Colorado Wildlife Commission Policy: Energy Development in Colorado.
The New York State Department of Environmental Conservation (DEC) is the state agency charged with the management of New York’s fish, wildlife, and marine resources. The New York Division of Fish, Wildlife, and Marine Resources (DFWMR), a division of the DEC, participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803. For more information, see:
The Washington State Department of Fish and Wildlife (WDFW) is the state agency charged with the preservation, protection, perpetuation, and management of the state’s wildlife and fish resources. RCW 77.04.012. The WDFW participates in the FERC licensing process by (in addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process) reviewing proposed hydropower projects and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. For more information, see:
The Vermont Agency of Natural Resources (ANR) is Vermont’s state agency with primary responsibility for protecting Vermont’s environment, natural resources and wildlife. ANR 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. ANR reviews the potential impacts on fish or wildlife species from a proposed hydropower project and issues conditions and recommendations.
12.15 to 12.16 - Is There Potential for the Project to Affect Land or Waters Within a Protected State Area?
A developer may need to obtain a permit from the appropriate state agency if the hydropower project has the potential to affect land or waters within a protected state area. For example, a developer may need to obtain a permit if the project has the potential to impact a fish-bearing stream or a protected state area.
In Alaska, a hydropower developer may need to obtain a Fish Habitat Permit from the Alaska Department of Fish and Game’s (ADF&G’s) Division of Habitat (ADF&G - Habitat) if the project will be conducted below the ordinary high water mark of an anadromous stream or if the project will affect fish passage in a fish-bearing stream.
A developer may also need a Special Area Permit from the ADF&G if the project will use land or water within a Special Area.
12.17 to 12.18 – Will the Project Divert, Obstruct, or Change the Natural Flow or Bed of Any State Water?
A developer may need to obtain a state permit or approval if the proposed project will divert, obstruct, or change the natural flow or bed of any state water body.
A developer may need to obtain a Stream Alteration Permit and comply with the applicable reporting requirements if the project changes, alters, or modifies the course, current, or cross section of any water-course or designated outstanding resource waters, within or along the boundaries of Vermont either by movement, fill, or excavation of ten (10) cubic yards or more of instream material in any year. 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a). For more information, see:
A hydropower developer may need to obtain a Hydraulic Project Approval from the Washington Department of Fish and Wildlife for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. “The purpose of the HPA is to ensure that construction or performance of work is done in a manner that protects fish life.” W.A.C. §220-660-010. For more information, see:
12.19 to 12.20 - Will the Project Be Licensed Through FERC’s Integrated Licensing Process?
If the hydropower project will be licensed through FERC’s Integrated Licensing Process (ILP), biological resource assessment processes will be integrated with the FERC licensing process. Under the ILP, FERC and other agencies cooperate in the preparation of the necessary environmental document 18 CFR 5.1(e). However, as part of the FERC licensing process, state departments of fish and game may recommend license conditions for protection, mitigation, enhancement of fish and wildlife resources FPA §§ 10(a) and 10(j). All other hydropower projects will need to complete the biological resource assessments processes as described below.
12.21 to 12.22 – Is There Potential for the Activity To Impact Essential Fish Habitat (EFH)?
Where the project could impact fish habitat designated by NOAA Fisheries (also known as the National Marine Fisheries Service (NMFS)) as Essential Fish Habitat, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, the authorizing agency is required to submit an Essential Fish Habitat (EFH) Assessment to NOAA Fisheries.
12.23 to 12.24 – Is There Potential for the Project to Take State Listed Endangered or Threatened Species?
A hydropower developer may need to obtain authorization from the appropriate state agency if the project is likely to result in the taking of a state listed endangered or threatened species.
A hydropower developer may need to obtain an incidental take permit from the New York State Department of Environmental Conservation (DEC) for a qualifying conduit hydropower facility or a FERC-exempted hydropower project that is likely to result in the taking of an endangered or threatened species. 6 CRR-NY 182.11. New York’s Environmental Conservation Law, § 11-0535 and Environmental Conservation Regulations, § 6 CRR-NY 182 give the DEC the authority to authorize the incidental take of a listed endangered or threatened species. 6 CRR-NY 182.11.
Note: The DEC does not require a hydropower developer to obtain an incidental take permit for a FERC-licensed project that is subject to regulation under Section 7 of the Federal Endangered Species Act.
12.25 – Continue with Project
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- Endangered and Threatened Species Permit Forms Website
- Incidental Take Permits Associated with a Habitat Conservation Plan Form 3-200-56
- Take of Eagles Permit Form 3-200-16
- Marine Mammals Take Permit Form 3-200-43
- Federal Migratory Bird Depredation Permit 3-200-13
- Section 7 Consultation Handbook
- Incidental Take Permit Overview
- BLM Sage-Grouse and Sagebrush Conservation webpage
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