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Federal FERC Alternative Licensing (7-FD-j)

The Alternative Licensing Procedures (ALP) are used to combine into a single process the pre-filing consultation process, the environmental scoping process under the National Environmental Policy Act (NEPA) and administrative processes associated with the Clean Water Act and other statutes. 18 CFR 4.34(i)(2)(i). The Federal Energy Regulatory Commission (FERC) oversees the ALP licensing process as authorized by the Federal Power Act. The ALP intends to facilitate greater participation by, and improve communication among, the potential developer, resource agencies, Indian tribes, and the public in a flexible pre-filing consultation process tailored to the circumstances of each case. 18 CFR 4.34(i)(2)(ii). Because the ALP process is a collaborative process, use of ALP may be particularly useful if a settlement agreement is being sought.


If the potential developer or any resource agency, Indian tribe, citizens’ group, or other entity participating in the alternative pre-filing consultation process can show that it has cooperated in the process but a consensus supporting the use of the process no longer exists and that continued use of the alternative process will not be productive, the developer may petition FERC for approval of alternative procedures to complete its application. 18 CFR 4.34(i)(7).


FERC Alternative Licensing Process

7-FD-j.1 – Form Stakeholder Work Group and Communications Protocol

The developer must form a stakeholder work group to enable all interest groups to become involved in the process from the beginning. Use of the work group allows all parties involved to bring up issues that need to be addressed in the licensing process. ALP Final Doc, page 3. The group generally consists of state and federal resource agencies, Indian tribes, NGOs, and local communities, and citizen groups. ALP Final, page 2. The work group will establish a Communications Protocol to govern how the developer and other participants in the pre-filing consultation process, including FERC staff, may communicate with each other regarding the merits of the developer’s proposal.

7-FD-j.2 – Request to use the Alternative Licensing Process

Developers must request to use the Alternative Licensing Process (ALP) if they wish to use it. The developer, when requesting use of the ALP, must:

  • Demonstrate that a reasonable effort has been made to contact all agencies, Indian tribes, and others affected by the developer’s request, and that a consensus exists that the use of alternative procedures is appropriate under the circumstances;
  • Submit a communications protocol, supported by interested entities, governing how the developer and other participants in the pre-filing consultation process, including FERC staff, may communicate with each other regarding the merits of the potential developer’s proposal and proposals and recommendations of interested entities; and
  • Provide a copy of the request to all affected resource agencies and Indian tribes and to all entities contacted by the developer that have expressed an interest in the alternative pre-filing consultation process.

18 CFR 5.3(c)(2).

7-FD-j.3 – Provide Notice of Request for Alternative Licensing Process

The developer must publish notice of their request for alternative licensing no later than the filing date of the NOI in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must:

  • Disclose the filing date of the request to use the alternative process;
  • Briefly summarize these documents and the basis for the request to use the alternative process;
  • Include the potential developer’s name and address, and telephone number, the type of facility proposed to be applied for, its proposed location, the places where the Pre-Application document is available for inspection and reproduction; and
  • Include a statement that comments on the request to use the alternative process are due to FERC and the potential developer no later than 30 days following the filing date of that document and, if there is no project number, that responses must reference the developer’s name and address.

18 CFR 5.3(d)(2).

7-FD-j.4 – Comment on Request for Alternative Licensing Process

Participating agencies and the public may comment on the request for alternative processes within 30 days following the filing of the document with FERC. 18 CFR 5.3(d)(2).

7-FD-j.5 – Provide Notice of Decision on Request to use Alternative Licensing

FERC must provide notice of their decision to approve or deny a request for alternative licensing procedures. 18 CFR 4.34(i)(6).

7-FD-j.6 to 7-FD-j.7 – Does FERC Approve the Request for Alternative Licensing Process?

FERC may approve or deny any request for alternative licensing. If FERC accepts the use of the alternative procedures, then the following provisions will apply:

  • To the extent feasible under the circumstances, FERC will give notice in the Federal Register and the developer will give notice, in a local newspaper of general circulation in the county or counties in which the project is located, of the initial information meeting and the scoping of environmental issues;
  • Every six months, the developer must file with FERC a report summarizing the progress made in the pre-filing consultation process and referencing the developer’s public file, where additional information on that process can be obtained;
  • At a suitable location, the developer will maintain a public file of all relevant documents, including scientific studies, correspondence, and minutes or summaries of meetings, compiled during the pre-filing consultation process;
  • A developer authorized to use alternative procedures may substitute a preliminary draft environmental review document and additional material specified by FERC and need not supply additional documentation of the pre-filing consultation process;
  • Pursuant to the procedures approved, the participants will set reasonable deadlines requiring all resource agencies, Indian tribes, citizens’ groups, and interested persons to submit to the developer requests for scientific studies during the pre-filing consultation process, and additional requests for studies may be made to FERC after the filing of the application only for good cause shown;
  • During the pre-filing process, FERC may require the filing of preliminary fish and wildlife recommendations, prescriptions, mandatory conditions, and comments, to be submitted in final form after the filing of the application (no notice that the developer is ready for environmental analysis is necessary after the filing of an application pursuant to alternative procedures);
  • Any potential developer, resource agency, Indian tribe, citizens’ group, or other entity participating in the alternative pre-filing consultation process may file a request with FERC to resolve a dispute concerning the alternative process, but only after reasonable efforts have been made to resolve the dispute with other participants in the process.

18 CFR 4.34(i)(6).

FERC Integrated Licensing Process:
7-FD-k

7-FD-j.8 – Notice of Intent and Pre-Application Document

The developer must submit a Notice of Intent and all necessary Pre-Application Documents to FERC. The developer may choose to submit their request for alternative licensing procedures with the Notice of Intent and Pre-Application Documents. The Notice of Intent must include the following:

  • The developer’s name and address;
  • The project number, if any;
  • The license expiration date, if any;
  • An unequivocal statement of the developer’s intention to file an application for an original license, or, in the case of an existing licensee, to file or not to file an application for a new or subsequent license;
  • The type of principal project works licensed, if any, such as dam and reservoir, powerhouse, or transmission lines;
  • The location of the project by state, county, and stream, and when appropriate, by city or nearby city;
  • The installed plant capacity, if any;
  • The names and addresses of every county in which any part of the project is located, and in which any Federal facility that is used or to be used by the project is located, and
  • The names and address of every city, town, or similar political subdivision in which any part of the project is or is to be located and any federal facility that is or is to be used by the project is located; or that owns, operates, maintains, or uses any project facility or any federal facility that is or is proposed to be used by the project;
  • The names and addresses of every other political subdivision in the general area of the project or proposed project that there is reason to believe would be likely to be interested in, or affected by, the notification; and
  • The names and addresses of all affected Indian tribes.

18 CFR 5.5(b).

The Pre-Application Document must describe the existing and proposed (if any) project facilities and operations, provide information on the existing environment, and existing data or studies relevant to the existing environment, and any known and potential impacts of the proposed project on the specified resources. 18 CFR 5.6(c).

Specifically, the Pre-Application Document must include the following:

Process plan and schedule The developer must include a plan and schedule for all pre-application activity that incorporates the timeframes for pre-filing consultation, information gathering, and studies. The plan and schedule must include a proposed location and date for the scoping meeting and site visit. 18 CFR 5.6(d)(1).

Project location, facilities, and operations

The developer must include in the Pre-Application Document:

  • The exact name and business address, and telephone number of each person authorized to act as agent for the applicant;
  • Detailed maps showing lands and waters within the project boundary by township, range, and section, as well as by state, county, river, river mile, and closest town, and also showing the specific location of any federal and tribal lands, and the location of proposed project facilities, including roads, transmission lines, and any other appurtenant facilities;
  • A detailed description of all existing and proposed project facilities and components;
  • A description of the current (if applicable) and proposed operation of the project, including any daily or seasonal ramping rates, flushing flows, reservoir operations, and flood control operations; and
  • A description of any new facilities or components to be constructed, plans for future development or rehabilitation of the project, and changes in project operation.

18 CFR 5.6(d)(2).

Description of existing environment and resource impacts

The developer must, based on the existing, relevant, and reasonably available information, include a discussion with respect to each resource that includes:

  • A description of the existing environment;
  • Summaries (with references to sources of information or studies) of existing data or studies regarding the resource;
  • A description of any known or potential adverse impacts and issues associated with the construction, operation, or maintenance of the proposed project, including continuing and cumulative impacts; and
  • A description of any existing or proposed project facilities or operations, and management activities undertaken for the purpose of protecting, mitigating impacts to, or enhancing resources affected by the project, including a statement of whether such measures are required by the project license, or were undertaken for other reasons.

18 CFR 5.6(d)(3).

The developer must provide all reasonably available information with respect to each of the following resources:

  • Geology and soils;
  • Water resources;
  • Fish and aquatic resources;
  • Wildlife and botanical resources;
  • Wetlands, riparian, and littoral habitat;
  • Rare, threatened and endangered species;
  • Recreation and land use;
  • Aesthetic resources;
  • Cultural resources;
  • Socio-economic resources;
  • Tribal resources; and
  • River basin description.

For further information on what must be included in the Pre-Application document under each resource, see 18 CFR 5.6(d)(3).

Preliminary issues and studies list

Based on the resource description and impacts discussion, the Pre-Application Document must include with respect to each resource area identified above, a list of:

  • Issues pertaining to the identified resources;
  • Potential studies or information gathering requirements associated with the identified issues;
  • Relevant qualifying federal and state or tribal comprehensive waterway plans; and
  • Relevant resource management plans.

18 CFR 5.6(d)(4).

Summary of contacts

The developer must include an appendix summarizing contacts with federal, state, and interstate resource agencies, Indian tribes, non-governmental organizations, or other members of the public made in connection with preparing the Pre-Application Document sufficient to enable FERC to determine if due diligence has been exercised in obtaining relevant information. 18 CFR 5.6(d)(5).

7-FD-j.9 to 7-FD-j.10 – Publish Notice of NOI and Pre-Application Documents

The developer must publish notice of the filing of its NOI and the Pre-Application Document no later than the filing date of the NOI in a daily or weekly newspaper of general circulation in each county in which the project is located. The notice must:

  • Disclose the filing date of the request to use the alternative process, and the NOI and Pre-Application Document;
  • Briefly summarize these documents and the basis for the request to use the alternative process;
  • Include the potential developer’s name and address, and telephone number, the type of facility proposed to be applied for, its proposed location, the places where the Pre-Application document is available for inspection and reproduction; and
  • Include a statement that comments on the request to use the alternative process are due to FERC and the potential developer no later than 30 days following the filing date of that document and, if there is no project number, that responses must reference the developer’s name and address.

18 CFR 5.3(d)(2).

7-FD-j.11 – Conduct Necessary Consultations

Before filing an application the developer must consult with the relevant Federal, State, and interstate resource agencies, including:

  • The National Marine Fisheries Service;
  • The United States Fish and Wildlife Service;
  • The National Park Service;
  • The United States Environmental Protection Agency;
  • The federal agency administering any United States lands or facilities utilized or occupied by the project;
  • The appropriate state fish and wildlife agencies;
  • The appropriate state water resource management agencies;
  • The certifying agency under Section 401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), and any Indian tribe that may be affected by the proposed project.

18 CFR 4.38(a).

For example, where the project affects a historical or cultural resource, consultation with the Advisory Council on Historic Preservation (ACHP) is necessary for compliance with the National Historic Preservation Act (NHPA). In licensing, FERC is bound by the provisions of NHPA, which requires that the effect of the action on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register of Historic Places be considered. ACHP must be given an opportunity to comment on the proposed action, and thus must be included in the pre-filing consultations. FERC Handbook, page B-2.

For example, developers are required to consult with NPS about recreational resources (including land management and aesthetic issues) and historic and archeological values. NPS primarily makes recommendations about recreation access and facilities, instream flows for recreation, and riparian corridor and conservation buffer zone protection. NPS Hydropower Assistance webpage.

FERC will, upon request, provide a list of known appropriate federal, state, and interstate resource agencies, Indian tribes, and local, regional, or national non-governmental organizations likely to be interested in any license application proceeding. 18 CFR 4.38(a)(4).

7-FD-j.12 – Initiate 401 Water Quality Certification

Under section 401 of the Clean Water Act (CWA), a federal agency may not issue a license authorizing the construction or operation of a project unless the appropriate state agency first issues a water quality certification for the project or waives certification by failing or refusing to act on a request for certification within a reasonable period of time. 33 USC 1341(a)(1). In order to allow the state agency sufficient time to analyze the impacts of the project on water quality and to meet the deadline for demonstrating compliance with section 401 of the CWA, the developer should request water quality certification from the appropriate state authority early on in the FERC licensing process.

Alaska

In Alaska, the Alaska Department of Environmental Conservation (ADEC) reviews and issues 401 Water Quality Certifications. ADEC reviews hydropower projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers in accordance with 18 AAC 15.180 and may issue a 401 WQC or waiver. For more information, see: 401 Water Quality Certification:
14-AK-d

California

In California, the California State Water Resources Control Board and the regional water quality control boards implement Section 401 of the Clean Water Act. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:

401 Water Quality Certification:
14-CA-d

Colorado

In Colorado, the Colorado Department of Public Health and Environment Water Quality Control Division regulates water quality and wetlands through the State’s 401 Water Quality Certification Program. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:

401 Water Quality Certification:
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Indiana

In Indiana, the Indiana Department of Environmental Management reviews and issues 401 Water Quality Certifications for hydropower projects filed with the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-IN-d

Iowa

In Iowa, the Iowa Department of Natural Resources reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-IA-d

Kentucky

In Kentucky, the Kentucky Department of Environmental Protection reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-KY-d

Louisiana

In Louisiana, the Louisiana Department of Environmental Quality (“LDEQ”) Water Permits Division reviews and issues 401 Water Quality Certifications for hydropower projects filed with the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers that may result in any discharge into the navigable waters of the United States. For more information, see:

401 Water Quality Certification:
14-LA-d

Minnesota

In Minnesota, the Minnesota Pollution Control Agency reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-MN-d

Missouri

In Missouri, the Missouri Department of Natural Resources (“MDNR”) reviews and issues 401 Water Quality Certifications (“WQC”) for hydropower projects filed with the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers that may result in any discharge into the navigable waters of the United States. For more information, see:

401 Water Quality Certification:
14-MO-d

New York

In New York, the New York State Department of Environmental Conservation (DEC) Division of Water Resources reviews and issues 401 Water Quality Certifications. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:

401 Water Quality Certification:
14-NY-d

North Dakota

In North Dakota, the North Dakota Department of Health reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-ND-d

Ohio

In Ohio, the Ohio Environmental Protection Agency (“Ohio EPA”) reviews and issues 401 Water Quality Certifications (“WQC”) for hydropower projects filed with the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers that may result in any discharge into the navigable waters of the United States. For more information, see:

401 Water Quality Certification:
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Pennsylvania

In Pennsylvania, the Pennsylvania Department of Environmental Protection (“PADEP”) reviews and issues 401 Water Quality Certifications. PADEP reviews hydropower projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers and may issue a 401 Water Quality Certification or waiver. For more information, see:

401 Water Quality Certification:
14-PA-d

Tennessee

In Tennessee, the Tennessee Department of Environment and Conservation reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-TN-d

Vermont

In Vermont, the Vermont Department of Environmental Conservation regulates water quality and issues 401 Water Quality Certifications pursuant to the Clean Water Act. Developers must obtain 401 Certifications for projects that require a Federal Energy Regulatory Commission or US Army Corps of Engineers license. For more information, see:

401 Water Quality Certification:
14-VT-d

Washington

In Washington, the Washington State Department of Ecology (WSDE) reviews and issues 401 Water Quality Certifications (WQC). The developer must submit a 401 WQC application for any hydropower project requiring a Federal Energy Regulatory Commission or US Army Corps of Engineers license, license amendment, or re-licensing. Washington currently does not require a 401 WQC for FERC exempted projects. For more information, see:

401 Water Quality Certification:
14-WA-d

West Virginia

In West Virginia, the West Virginia Department of Environmental Protection reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or the US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
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Wisconsin

In Wisconsin, the Wisconsin Department of Natural Resources reviews and issues 401 Water Quality Certifications for projects filed with the Federal Energy Regulatory Commission or US Army Corps of Engineers that may result in any discharge into the navigable waters of the U.S. For more information, see:

401 Water Quality Certification:
14-WI-d

7-FD-j.13 – Commence Scoping under NEPA

FERC conducts scoping for the environmental review required under the National Environmental Policy Act (NEPA). During the scoping process, the developer and other participants identify the need for specific scientific studies. 18 CFR 4.34(i)(4)(ii).

7-FD-j.14 - Conduct National Historic Preservation At Section 106 Consultation

Section 106 of the National Historic Preservation Act requires FERC to consult with appropriate state and local officials, Indian tribes, applicants for federal assistance, and members of the public and to consider their views and concerns about the effect of licensing a hydropower project on historic properties within the affected area.

For more information regarding the National Historic Preservation Act (NHPA) requirements, see:

National Historic Preservation Act Section 106 – Resource Survey:
11-FD-a

7-FD-j.15 – Conduct Endangered Species Act Section 7 Consultation Process

Under the Endangered Species Act (ESA) section 7(a)(2), FERC must ensure that any action it authorizes is not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of a designated critical habitat. If the project will adversely affect a threatened or endangered species of fish, wildlife, or plant, then the FWS or NMFS may establish reasonable and prudent alternatives (RPA) or measures (RPM). FERC is not required to include the measures in a license, but FERC and the developer may be held liable for any damage to a listed species that results from the license. Due to this, FERC treats RPA or RPM as mandatory conditions included in the license. FERC Handbook, page B-2.

Endangered Species Act Section 7 Consultation Process:
12-FD-c

7-FD-j.16 – Provide Notice Requesting Terms and Conditions

FERC must provide notice requesting terms and conditions sought to be attached to the license.

7-FD-j.17 – Initial Information Package

The developer must submit an initial information package to FERC disclosing any existing information about project impacts. 18 CFR 4.34(i)(6)(ii).

7-FD-j.18 – Scoping Document 1

FERC will issue scoping document 1.

7-FD-j.19 to 7-FD-j.20 – Provide Notice of the Initial Information Meeting

FERC will give notice in the Federal Register of the initial information meeting. The developer must provide notice in a local newspaper of general circulation in the county or counties in which the project is located, of the initial information meeting. The developer must also provide notice to a mailing list approved by FERC. 18 CFR 4.34(i)(6)(i).

7-FD-j.21 – Conduct an Initial Information Meeting

The developer must conduct an initial information meeting to discuss the Pre-Application Document. FERC Handbook, page 5-6.

7-FD-j.22 – Develop Study Plan

The developer and other participants must cooperate in the development of a study plan. FERC Handbook, page 5-6.

7-FD-j.23 – Conduct Necessary Studies

The developer will be responsible for conducting any studies deemed necessary for the project. Any participating agency may request a specific study. FERC Handbook, page 5-6. The developer typically will hire an outside contractor to conduct the studies. However, it is the developer's responsibility that the studies be conducted.

7-FD-j.24 – Application for FERC Licensing and Preliminary Draft EA or EIS

The developer must file an application with FERC. The requirements for applications are the same as with the Traditional Licensing Process.

The developer’s application must include the following:

  • Minimum content requirements under 18 CFR 4.38;
  • Complete protection, mitigation, and enhancement proposals;
  • Evidence of completion of pre-filing consultation;
  • Coastal Zone Management Act (CZMA) compliance; and
  • Documentation satisfying 401 Certification requirements.

The application may also include a draft preliminary EA or EIS. This document may be prepared by a third-party contractor and will incorporate any preliminary comments, recommendations, terms and conditions filed by fish and wildlife resource agencies in response to Commission notice, if such notice was issued. FERC Handbook, page 5-8.


7-FD-j.25 – Conduct Substantive Review of Application Materials

FERC must conduct a substantive review of the application materials. FERC Handbook, page 5-8.

7-FD-j.26 – Demonstrate Compliance with 401 Water Quality Certification

The developer must demonstrate compliance with the CWA’s water quality certification requirements and should include documentation of compliance in the application filed with FERC. FERC Handbook, page 5-7.

See element 7-FD-j.9.

7-FD-j.27 to 7-FD-j.28 – Does FERC Request Additional Information?

FERC may request additional information from the developer even if the application fulfills all regulatory requirements. FERC Handbook, page 5-8.

7-FD-j.29 – Is the Application Accepted?

FERC may accept an application, or determine that it is deficient. FERC Handbook, page 5-8.

7-FD-j.30 – Is the Application Patently Deficient?

If the application is deficient, but not patently deficient, then FERC will request that the developer submit any required information. If the application is patently deficient, then it will be rejected. FERC Handbook, page 5-8.

7-FD-j.31 – Deficiency Letter

FERC will notify the developer that their application is deficient. The developer will be given an appropriate period of time to correct deficiencies. FERC Handbook, page 5-8. If the application is rejected, then it may be resubmitted if the deficiencies are corrected and if the resubmittal is timely. The date the rejected application is submitted will be considered the new filing date for purposes of determining timeliness under 18 CFR 4.36 and the disposition of applications under 18 CFR 4.37.

7-FD-j.32 – Submit a Request for Rehearing

If the developer disagrees with a determination by FERC, then they may request a rehearing of the decision.

7-FD-j.33 – Letter of Acceptance

If the application is accepted, then FERC will issue a Letter of Acceptance to the developer. FERC Handbook, page 5-8.

7-FD-j.34 – Provide Notice of Acceptance

If the application is accepted, then FERC provides public notice in the Federal Register, local newspapers, and directly to resources agencies and Indian tribes. The notice will identify dates for comment, intervention, and protests. FERC will also include requests for protests, interventions, and requests the final fish and wildlife recommendations, prescriptions, mandatory conditions, and comments from the resource agencies and Indian tribes. FERC Handbook, page 5-9.

7-FD-j.35 – Comment on Acceptance

FERC will solicit public comment on the acceptance of an application. FERC handbook, page 5-9.

7-FD-j.36 to 7-FD-j.37 – Develop License Conditions and Recommendations

Any agency responsible for developing mandatory terms, conditions or prescriptions for a FERC license, or issuing recommendations to FERC for a FERC license, may provide these terms, conditions, prescriptions or recommendations in the agency’s initial comments filed on the application. Agencies and the public may comment no later than 60 days following public notice of the application. These agencies will include those acting pursuant to the following:

FPA Section 4(e)

Where the project will be located on a federal reservation, the federal agency responsible for managing that land can file conditions to protect the reservation, and these conditions are required to be included in any license issued.

For example, The Forest Service (FS) may require that a license for a project occupying lands or waters of a National Forest include those conditions necessary to assure the protection and use of the affected resources. United States Department of the Interior Memorandum M-37005. A national forest is considered a “reservation” for purposes of FPA Section 4(e), and FS is authorized to impose mandatory conditions on the project license. 16 USC 796(2).

FPA Section 10(a)

FERC must ensure that the project is best adapted to a comprehensive plan for developing the waterway for beneficial public purposes.

For example, The NPS has submitted the Nationwide Rivers Inventory as a comprehensive plan with FERC. NPS may then submit conditions to FERC for consideration under FPA Section 10(a) to ensure that the project is best adapted to the Nationwide Rivers Inventory. FERC List of Comprehensive Plans.

FPA Section 10(j)

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 will develop preliminary conditions for inclusion in the license pursuant to section 10(j) of the Federal Power Act.

The agencies are responsible for filing any preliminary fish and wildlife recommendations, prescriptions, conditions, and comments, to be submitted in final form after the filing of the application. FERC Handbook, page 5-5. FERC will include these measures unless it finds them inconsistent with the FPA or other applicable law. FERC likely could avoid 10(j) disputes if the ALP application contains consensus for the proposed protection, mitigation, and enhancement measures. FERC Handbook, page 4-14.

FPA Section 18

The Secretaries of Commerce and the Interior can prescribe mandatory fishways at licensed projects, and those conditions are required to be included in any license issued.

For example, the NMFS may require acceptable fishway prescriptions to safeguard certain species of fish from changes in waterflow that degrade their habitat. NOAA Hydropower and Fish Passage webpage.

FERC Handbook, page 1-4.

The agency must specifically identify and explain the mandatory terms and conditions or prescriptions and their evidentiary and legal basis. 18 CFR 4.34(b)(1).

With TLP, any agency must also submit the following by the due date:

  • Preliminary terms and conditions or prescriptions and a schedule showing the status of the agency proceedings and when the terms and conditions or prescriptions are expected to become final; or
  • A statement waiving the agency’s right to file the terms and conditions or prescriptions or indicating the agency does not intend to file terms and conditions or prescriptions.

18 CFR 4.34(b)(1).

Agency Conditions and Recommendations

  • Bureau of Indian Affairs
    • The Bureau of Indian Affairs (BIA) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, where a project is located on tribal lands, a tribe has an interest in the area where the project is located, or a project may interfere with the purpose of a reservation. The BIA may also participate by engaging with fish and wildlife agencies responsible for developing section 10(j) recommendations.

Bureau of Indian Affairs - FERC License Conditions and Recommendations-
7-FD-l

  • Bureau of Reclamation
    • The Bureau of Reclamation (BOR) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, for projects that are located on or may otherwise affect a BOR facility.

Bureau of Reclamation- FERC License Conditions and Recommendations-
7-FD-n

  • National Park Service
    • The National Park Service (NPS) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, for projects that are located on federally-reserved NPS lands, projects that may affect NPS-managed lands, and projects that may affect recreational interests in non-NPS lands.

National Park Service- FERC License Conditions and Recommendations-
7-FD-q

  • U.S. Forest Service
    • The United States Forest Service (USFS) typically issues FPA section 4(e) conditions or 10(a) recommendations, as appropriate, where projects are located on National Forest Service lands or may adversely affect National Forest System resources.

U.S. Forest Service- FERC License Conditions and Recommendations-
7-FD-s


State Fish and Wildlife Agencies

Alaska

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:

State Fish and Wildlife License Conditions and Recommendations:
12-AK-a(1)

California

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:

State Fish and Wildlife License Conditions and Recommendations:
12-CA-a (1)

Colorado

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.

State Fish and Wildlife License Conditions and Recommendations:
12-CO-a (2)

Illinois

The Illinois Department of Natural Resources (IDNR) is the state agency charged with managing the state’s wildlife and natural resources. 520 ILCS §5/1.3. IDNR 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 at US Army Corps of Engineers (USACE) non-powered dams. IDNR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-IL-a

Indiana

The Indiana Department of Natural Resources (IDNR) is the state agency charged with protecting the state’s environment and natural resources. I.C. §14-9-1-1. IDNR 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 located at US Army Corps of Engineers (USACE) non-powered dams. Additionally, IDNR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing and therefore are not subject to mandatory terms and conditions pursuant to 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-IN-a

Iowa

The Iowa Department of Natural Resources (IDNR) is Iowa’s state agency charged with “protecting the environment, and managing fish, wildlife, and land and water resources” in the state. I.C. §455A.2. IDNR 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 located at U.S. Army Corps of Engineers (USACE) non-powered dams. IDNR may issue recommendations to FERC regarding the proposed project to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing and therefore are not subject to mandatory terms and conditions pursuant to Section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-IA-a

Kentucky

The Kentucky Department of Fish & Wildlife Resources (“KDFWR”) is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. K.R.S. § 150; 301 K.A.R.. KDFWR 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 at US Army Corps of Engineers (“USACE”) non-powered dams. Additionally, KDFWR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-KY-a


Louisiana

The Louisiana Department of Wildlife and Fisheries (“LDWF”) is charged with protecting, conserving, and replenishing wildlife and aquatic life in the state. L.R.S. § 56:1. LDWF 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 located at U.S. Army Corps of Engineers (“USACE”) non-powered dams. LDWF may issue recommendations to FERC regarding the proposed project to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing and therefore are not subject to mandatory terms and conditions pursuant to Section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-LA-a

Minnesota

The Minnesota Department of Natural Resources (“MNDNR”) is the state agency charged with controlling the state’s wildlife and natural resources. Minn. Stat. §84.027(2). MNDNR 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 at US Army Corps of Engineers (“USACE”) non-powered dams. MNDNR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-MN-a

Missouri

The Missouri Department of Conservation (“MDC”) is Missouri’s state agency “charged with the control, management, conservation, and regulation of the bird, fish, game, forestry, and all wildlife resources of the state.” 3 C.S.R. § 30-1.010(1); Missouri – Mo. Rev. Stat. §§ 242.010 et seq., Missouri Wildlife and Forestry Law. MDC 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 located at U.S. Army Corps of Engineers (“USACE”) non-powered dams. MDC may issue recommendations to FERC regarding the proposed project to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing and therefore are not subject to mandatory terms and conditions pursuant to Section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-MO-a

New York

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:

State Fish and Wildlife License Conditions and Recommendations:
12-NY-a

North Dakota

The North Dakota Game and Fish Department (NDGF) is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. N.D. Century Code §20.1-02-04. NDGF 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 at US Army Corps of Engineers (USACE) non-powered dams. Additionally, NDGF may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-ND-a

Ohio

The Ohio Division of Wildlife (“Division of Wildlife”) within the Ohio Department of Natural Resources (“ODNR”) is Ohio’s state agency charged with investigating, considering, and making recommendations “in all matters pertaining to the protection, preservation, propagation, possession, and management” of Ohio’s wildlife. O.R.C. § 1531.03(C). The Division of Wildlife 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 located at U.S. Army Corps of Engineers (“USACE”) non-powered dams. The Division of Wildlife may issue recommendations to FERC regarding the proposed project to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing and therefore are not subject to mandatory terms and conditions pursuant to Section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-OH-a

Pennsylvania

The Pennsylvania Fish and Boat Commission ("PFBC") is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. 30 Pa.C.S. § 3; PFBC Policy Manual. PFBC 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 at US Army Corps of Engineers (“USACE”) non-powered dams. Additionally, PFBC may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-PA-a

Tennessee

The Tennessee Wildlife Resources Agency (“TWRA”) is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. Tenn. Code Ann. §70-1-302. TWRA 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 at US Army Corps of Engineers (“USACE”) non-powered dams. Additionally, TWRA may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-TN-a

Vermont

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.

State Fish and Wildlife License Conditions and Recommendations:
12-VT-a

Washington

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:

State Fish and Wildlife License Conditions and Recommendations:
12-WA-a(1)

West Virginia

The West Virginia Division of Natural Resources (“WVDNR”) is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. W.V.C. §20-2. WVDNR 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 at US Army Corps of Engineers (“USACE”) non-powered dams. Additionally, WVDNR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-WV-a

Wisconsin

The Wisconsin Department of Natural Resources (Wisconsin DNR) is the state agency charged with controlling and conserving the state’s plant and wildlife resources. Wis. Stat. §23; Wis. Stat. §29. Wisconsin DNR 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 at US Army Corps of Engineers (USACE) non-powered dams. Wisconsin DNR may issue recommendations to FERC regarding the proposed project designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. USACE hydropower projects are not exempt from FERC licensing, and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-WI-a

7-FD-j.38 – Final Licensing Order

FERC will issue a final Licensing Order following notice and comment on the final environmental document. FERC handbook, page 5-10.

FERC Licensing Orders contain an extensive overview of the project, licensing requirements and information regarding compliance with federal law, generally containing content in the following form:

  • Introduction, describing application date, type, and project capacity.
  • Background, describing licensing history and current application history.
  • Project Description, describing the following about the project;
    • Area.
    • Facilities.
    • Recreation sites.
    • Boundary.
    • Current operation.
    • Proposed operation and environmental measures.
  • Summary of License Requirements, describing the license authorizations and requirements.
  • Water Quality Certification, describing water quality certification and conditions.
  • Coastal Zone Management, describing CZMA consistency certification.
  • Section 18 Fishway Prescription, describing required fishways.
  • Threatened and Endangered Species, describing Endangered Species Act compliance.
  • National Historic Preservation Act, describing National Historic Preservation Act compliance.
  • FPA Section 10(a)(1), describing adaptation to conform with comprehensive plan.
  • FPA Section 10(j) Recommendations, describing conditions submitted by federal and state fish and wildlife agencies.
  • Administrative Provisions, describing required administrative provisions.
  • State and Federal Comprehensive Plans, describing consistency with state and federal comprehensive plans.
  • Applicant’s Plans and Capabilities, describing FERC’s analysis of the licensee’s record as a licensee.
  • Project Economics, describing FERC’s analysis of the economic benefits of the project.
  • Comprehensive Development, describing FERC’s analysis of the impact of the development.
  • License Term, describing the license term, requirements, and project detail.
  • Terms and Conditions, describing all the terms and conditions attached to the license.
  • Appendix A, Water Quality Certification Conditions, containing an additional description of the conditions of water quality certification.

See FERC Online eLibrary.




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