RAPID/Roadmap/7-FD-o

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Federal U.S. Fish and Wildlife Service License Conditions and Recommendations (7-FD-o)

The U.S. Fish and Wildlife Service (FWS) is a federal agency dedicated to the management of fish, wildlife, and natural habitats. The FWS’s mission is to work “with others to conserve, protect, and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people.”

The FWS participates in the Federal Energy Regulatory Commission (FERC) licensing process by (in addition to other things) conducting environmental studies and issuing conditions or recommendations, as appropriate, to address the impacts of hydropower projects and to improve fish and wildlife habitat. FWS: Dam Relicensing.

The FPA provides that any FERC license issued for a project located on reserved lands shall be subject to and must contain such conditions as the Secretary of the Interior deems necessary for the adequate protection and utilization of such lands. 16 U.S.C. § 797(e). “Reserved lands” include National Fish Hatcheries, National Waterfowl Management Areas, and lands located within the National Wildlife Refuge System that are managed by the FWS. 16 USC 796(2).

Section 18 of the Federal Power Act states that FERC “shall require the construction, maintenance, and operation by a licensee at its own expenses of such. . . fishways as may be prescribed by the Secretary of the Interior” and authorizes the FWS to impose fish passage requirements on a FERC license. 16 USC 811.

The Federal Power Act (FPA) further requires that non-power interests be given “equal consideration” with power interests in the licensing and relicensing process. 16 USC 797(e). In 1986, Congress added Section 10(j) to the FPA to emphasize the importance of fish and wildlife in balancing developmental and non-developmental values. Under Section 10(j), the FWS 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).

Under Section 30(a) of the FPA, the FWS may also issue mandatory terms and conditions for hydropower projects that are exempt from the FERC licensing process. 16 USC 823a(c).


U.S. Fish and Wildlife Service License Conditions and Recommendations Process

7-FD-o.1 – Initiate Project Analysis

In order to assess any potential impacts to fish, wildlife and plant species and their supporting habitat, the U.S. Fish and Wildlife Service (FWS) will initiate an analysis of the developer’s proposed hydropower project.


7-FD-o.2 to 7-FD-o.3 - Is the Proposed Hydropower Project Exempt from FERC licensing?

Section 30(a) of the FPA authorizes the FWS to 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).


7-FD-o.4 to 7-FD-o.5 – May the Proposed Project Affect Fish or Wildlife Species?

If the proposed project may affect fish or wildlife species, the FWS will develop section 30(a) conditions for the protection of these resources. 16 USC 823a(c).


7-FD-o.6 to 7-FD-o.7 – 30(c) Conditions

Once developed, the FWS issues the 30(c) conditions to FERC.

If FERC issues an exemption for the proposed hydropower project, the FERC exemption will include the FWS’s 30(c) conditions. FERC will continue to monitor the project for compliance with the 30(a) conditions. 16 USC 823b(a).


7-FD-o.8 – Assess Project’s Potential Impacts to Fish and Wildlife Species, Supporting Habitat, and Fish Passage

If the proposed hydropower project is subject to FERC licensing, the FWA conducts a review of the project to assess the project’s potential to impact fish and wildlife species and to determine whether the project is best adapted to a comprehensive plan to protect fish and wildlife species, their supporting habitat and fish passage conditions.


7-FD-o.9 – Develop and Submit to FERC Section 4(e) Conditions; Section 10(a) Recommendations; Section 10(j) Recommendations; Preliminary Fishway Prescriptions

The FWS may develop Section 4(e) conditions, Section 10(a) recommendations, Section 10(j) recommendations and/or Section 18 fishway prescriptions for the FERC license, as appropriate.

Section 4(e) Conditions

If a project is located on lands within a National Fish Hatchery, a National Waterfowl Management Area, or the National Wildlife Refuge System, Section 4(e) of the Federal Power Act authorizes the FWS to impose mandatory conditions on the FERC license that are deemed “necessary for the adequate protection and utilization of [the] reservation.” 16 U.S.C. § 797(e).

Section 10(a) Recommendations

If a hydropower project may affect a National Fish Hatchery, a National Waterfowl Management Area or National Wildlife Refuge, the Federal Power Act authorizes the FWS to issue Section 10(a) recommendations to FERC for the conservation, protection, and enhancement of fish, wildlife, plants and their habitats. 16 USC 803(a)(2)(B).

Section 10(j) Recommendations

In 1986, Congress added section 10(j) to the FPA. The FPA requires that non-power interests be given “equal consideration” with power interests in the FERC licensing and relicensing processes. Section 10(j) emphasizes the importance of fish and wildlife in balancing developmental and non-developmental values. 16 USC 797(e). Under section 10(j), the FWS may issue recommendations, which FERC must consider, for the protection, mitigation, and enhancement of fish that might be affected by a hydropower project. 16 USC 803(j).

Section 18 Preliminary Fishway Prescriptions

Section 18 of the Federal Power Act authorizes the FWS to prescribe mandatory improvements for fish passage methods in order to ensure the safe, timely, and effective passage of fish at hydropower projects licensed by FERC. 16 USC 811.

If a hydropower project may affect the passage of fish species present within the project area (or species planned for introduction into the area), the FWS may prescribe any upstream and downstream fishway passage requirements the FWS deems necessary in order to maintain all life stages of fish impacted by the project. 16 USC 811.

The Section 18 fishway prescription is limited to:

  1. Physical structures, facilities, or devices necessary to maintain all life stages of such fish; and
  2. Project operations and measures related to structures, facilities, or devices which are necessary to ensure the effectiveness of such structures, facilities, or devices for such fish.

16 USC 811; National Energy Policy Act (Oct. 24, 1992), §1701(b).

Once the FWS develops the license recommendations and/or fishway prescriptions it deems necessary to protect fish species, supporting habitat, spawning grounds and fish passage conditions, the FWS submits its preliminary recommendations and fish passage prescriptions to FERC.


7-FD-o.10 to 7-FD-o.11 - Does Any Party Seek to Propose Alternative 4(e) Conditions or an Alternative Fishway Prescription or to Challenge a Disputed Issue of Material Fact?

Section 241 of EPAct 2005 added Section 33 to the Federal Power Act, allowing the license applicant or any other party to the licensing proceeding to propose alternative Section 4(e) conditions and/or an alternative fishway prescription.

Section 241 of Energy Policy Act of 2005 (EPAct 2005) also amended section 18 of the Federal Power Act to provide that, after an opportunity for an agency trial-type hearing of no more than 90 days, any party to a license proceeding may seek a determination on the record of any disputed issues of material fact with respect to any agency’s mandatory fishway prescriptions.


7-FD-o.12 – Proposal for Alternative 4(e) Conditions and/or Fishway Prescription

To propose alternative 4(e) conditions or an alternative fishway prescription, the developer must file a written proposal with the FWS within 30 days after the deadline for submitting preliminary prescriptions to FERC. Additional content requirements for written proposal can be found at 43 CFR 45.21.


7-FD-o.13 – Analyze Proposed Alternative 4(e) Conditions and/or Fishway Prescription

After receiving a written proposal, and within 60 days of the deadline for filing comments to FERC’s NEPA document, the FWS must analyze proposed alternatives, hold a hearing, and file with FERC any adopted alternatives. 43 CFR 45.72.

The FWS must accept the proposed alternative 4(e) conditions if the FWS determines, based on substantial evidence that the alternative condition(s):

  1. Will provides for the adequate protection and utilization of the reservation; and
  2. Will either, as compared to the 4(e) conditions initially prescribed, cost significantly less to implement or result in improved operation of the project works for electricity production. (43 CFR 45.73).

The FWS must accept and prescribe the alternative fishway prescription proposed by the developer in lieu of the FWS prescription if the FWS determines, based on substantial evidence, that the alternative:

  1. Will be no less protective than the fishway initially prescribed; and
  2. Will either, as compared to the fishway initially prescribed, cost significantly less to implement or result in improved operation of the project works for electricity production.

16 U.S.C. 823d.

In making a determination whether to accept and prescribe the developer’s alternative 4(e) conditions and/or fishway prescription, the FWS must consider evidence provided by the developer, or otherwise available to the FWS (including any evidence provided by FERC) on the implementation costs or operational impacts for electricity production. 16 U.S.C. 823d.

The FWS must file a statement with FERC explaining the reasons for accepting or rejecting any alternatives and the basis for any modified conditions or prescriptions to be included in the FERC license. 43 CFR 45.73.


7-FD-o.14 – Request for Hearing

To request a hearing, a written request must be filed within 30 days after the deadline for submitting preliminary conditions and prescriptions to FERC. Additional content requirements for written requests for a hearing can be found at 43 CFR 45.21.

After receiving a written request for a hearing, and within 45 days of the deadline for submitting preliminary conditions or prescriptions, the FWS will file an answer. 43 CFR 45.24.


7-FD-o.15 – Conduct Hearing

Within 5 days of receipt of the answer, the Office of Environmental Policy and Compliance (OEPC) may refer the case for hearing to the Department of the Interior’s (DOI) Office of Hearing and Appeals or to the hearings component of another department. 43 CFR 45.25. If the case is referred to the DOI, the hearing process will be governed by 43 CFR 45.1 et seq.; if OALJ, governed by 7 CFR 1.630 et seq.; and if DOC, governed by 50 CFR 221.1 et seq..


7-FD-o.16 – Determination on the Record

After the hearing, the ALJ hearing the case makes a determination on the record.


7-FD-o.17 – Modified 4(e) Conditions and/or Fishway Prescription

If the FWS accepts the developer’s alternative 4(e) conditions and/or fishway prescription, or the ALJ makes a determination in favor of the challenging party, the FWS will file the modified 4(e) conditions and/or fishway prescription with FERC.


7-FD-o.18 – Continue With FERC Licensing

Once the review process is complete, the FERC licensing process continues and FERC may issue the FERC license with the any conditions and/or fishway prescriptions or recommendations provided by the FWS and as required by the FPA.

Section 4(e) Conditions

FERC must include any final Section 4(e) conditions issued by the FWS in the project license. 16 U.S.C. § 797(e).

Section 18 Preliminary Fishway Prescriptions

The fish passage requirements issued by the FWS are mandatory and may not be altered or rejected by FERC. 16 USC 811.

Section 10(j) Recommendations

FERC must consider and accept any 10(j) recommendations received from the FWS for the protection, mitigation, and enhancement of fish 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). FERC must include either the FWS’s recommendations or the alternative conditions selected by FERC in the FERC license.

Section 10(a) Recommendations

FERC has discretion whether to condition the FERC license based on the FWS’s 10(a) recommendations.



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