Federal National Park Service - FERC License Conditions and Recommendations (7-FD-q)
The NPS was established by the Organic Act of August 25, 1916, to manage a newly created National Park System. 54 USC 100101 et seq. - National Park Service Organic Act. The NPS has a dual mission of protecting the park system and assisting NPS partners, which is reflected in the NPS’s involvement in FERC hydropower proceedings. The NPS mission states that: “NPS preserves unimpaired the natural and cultural resources and values of the National Park System for the enjoyment, education, and inspiration of this and future generations.” The NPS cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world.” NPS Mission.
Within parks, it is contrary to policy to construct dams and reservoirs (Management Policies 9.5). NPS will not authorize hydropower activities within units of the National Park System if doing so would result in a derogation of the values and purposes for which the various areas have been established, unless specifically provided for by Congress. NPS Management Policies 2006, Sec. 1.4.Outside of parks, NPS policy is to recognize the full potential that hydroelectric projects licensed under the Federal Power Act may offer for: (1) meeting present and future public outdoor recreation demands; and (2) the maintenance and enhancement of the quality of the environmental setting of these projects. NPS also provides technical assistance to participants in hydropower licensing proceeding, as authorized by the Outdoor Recreation Act (54 USC 200103), the Wild and Scenic Rivers Act (16 USC 1282), and the National Trails System Act (16 USC 1246). Recreational Technical Assistance in Hydropower Licensing (57 FR 61915).
National Park Service - FERC License Conditions and Recommendations Process
7-FD-q.1 – Is the Project Sited Within a National Park Service (NPS) Area?
The FPA provides the NPS with a range of authority that the NPS may use to protect park resources and visitor experiences. Adding new or increased hydroelectric capacity to dams within units of the National Park System is generally inconsistent with the mission of the National Park Service (NPS) and is subject to review by the NPS. Potential Hydroelectric Development at Existing Federal Facilities; NPS Management Policies 2006, Sec.1.4 and Sec. 9.5.
7-FD-q.2 – Will the Project Potentially Impact a NPS Area?
If a proposed hydropower project has the potential to impact park resources, the NPS will use the full range of its authority, including FPA Section 4(e); FPA Section 10(a); NPS-issued rights-of-way, special use permits and construction permits to protect park resources and visitor experiences. 54 USC 100902; Title 36 CFR 14 et seq.; 36 CFR 5.7 – Construction of Buildings or Other Facilities.
7-FD-q.3 – Will the NPS Seek to Protect Recreational and Other Resources on Non-NPS Areas?
The NPS may still become involved in the FERC licensing process if a hydropower project is sited outside the boundaries of NPS managed lands. The NPS may choose to become involved in the FERC licensing process to mitigate impacts and protect and enhance recreation, natural, cultural and aesthetic resources. Due to limited resources, the NPS can only become involved with a limited number of hydropower projects. In selecting which hydropower projects to become involved with, the NPS will:
- Give priority to those projects located in areas with high natural, cultural and/or recreational resource values (e.g., sites on the Nationwide Rivers Inventory);
- Give priority to projects where there is significant opportunity to create or improve recreation opportunities;
- Provide assistance on a diverse mix of recreation experiences, settings and geographical locations in the program portfolio;
- Provide special consideration to rivers, or river basins, with multiple projects, especially where a holistic approach will serve to advance public recreation opportunities more than a site-by-site approach;
- Respond and provide technical assistance as resources allow to requests from public and private energy, conservation and recreation interests. The NPS will strive to ensure that those stakeholders that have little or no access to professional sources of planning assistance and analysis have equal consideration and opportunity to participate in the process.
7-FD-q.4 – Continue With FERC Licensing
If the NPS elects not to become involved in the FERC licensing process, NPS will not issue conditions or recommendations for the FERC license. After consulting with the NPS, the developer may continue with the FERC licensing process.
7-FD-q.5 to 7-FD-q.6 – Is the Project Sited Within a National Park or Monument Established Prior to 1921?
The FPA prohibits FERC from licensing hydropower projects within the limits of any National Park or National Monument constituted on or before March 3, 1921, without Congressional approval. 16 USC 797a. If Congress approves a hydropower project sited within a National Park or National Monument established on or before March 3, 1921, the NPS will participate in the FERC licensing proceedings by working with other stakeholders to analyze and mitigate the potential impacts of the proposed hydropower project on NPS resources and visitor experiences.
7-FD-q.7 – Initiate Project Analysis
If the proposed hydropower project is sited within a National Park or National Monument established after 1921 or on other lands within a NPS area, the NPS will use the full range of its authority, as appropriate, including FPA Section 4(e); FPA Section 10(a); NPS-issued rights-of-way, special use permits and construction permits to protect park resources and visitor experiences. The NPS participates in the FERC licensing proceedings by working with other stakeholders to analyze and mitigate the potential impacts of the proposed hydropower project on NPS resources and visitor experiences within parks and on recreation and related interests outside parks.
7-FD-q.8 – Will the Project Have a Direct and Adverse Impact on Federal Land Within a NPS Area?
The FPA prohibits the Federal Energy Regulatory Commission (FERC) from licensing hydropower projects within the boundaries of a unit within the National Park System if those projects “would have a direct adverse impact to federal lands within any such unit.” Further, except as specifically provided for by Congress, NPS will not authorize hydropower activities within units of the National Park System if such activities will result in a derogation of the values and purposes for which those areas were established. 16 USC 797c – Dams in National Park System Units; 54 USC 100101 et seq. - National Park Service Organic Act; NPS Management Policies 2006, Sec. 1.4 and Sec. 9.5].
7-FD-q.9– Develop 4(e) Conditions and 10(a) Recommendations As Appropriate
Within parks, the NPS will use the full range of its Section 4(e) and Section 10(a) authority (as well as its authority to create rights-of-way and to enter into settlement agreements with developers and other stakeholders), as appropriate, to develop measures for the protection, mitigation, and enhancement (PME) of NPS resources and visitor experiences.
Outside parks, the NPS will use Section 10(a) authority and to enter into settlement agreements, as appropriate, to develop measures for the protection, mitigation, and enhancement (PME) of recreation and other related interests.
Sections 4(e) and 10(a) of the FPA authorize the NPS, under certain circumstances, to issue conditions and/or recommendations to FERC with respect to the FERC license. FERC must include any Section 4(e) conditions issued by the NPS in the FERC project license. 16 U.S.C. § 797(e). Whereas Section 4(e) conditions are mandatory, Section 10(a) recommendations are not mandatory. FERC has discretion on whether or not to incorporate Section 10(a) recommendations issued by the NPS into the FERC project license. However, if the hydropower project requires a right-of-way or special use authorization from the NPS, any Section 4(e) conditions and/or Section 10(a) recommendations issued by the NPS will likely be reflected in the conditions of the NPS-issued right-of-way or special use authorization. 54 USC 100902; Title 36 CFR 14 et seq.; 36 CFR 5.7 – Construction of Buildings or Other Facilities.
For more information on the NPS application process for issuing a right-of-way, see
7-FD-q.10 – Preliminary Terms, Conditions and Recommendations
Upon completion, the NPS submits its preliminary Section 4(e) conditions and Section 10(a) recommendations to FERC.
7-FD-q.11 to 7-FD-q.12 – Has the NPS Issued Mandatory 4(e) Conditions for the FERC License?
Section 241 of Energy Policy Act of 2005 (EPAct 2005) amended section 4(e) of the Federal Power Act to provide that any party to a license proceeding may seek a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to any agency’s mandatory conditions (see 43 CFR 45.20 et seq.).
7-FD-q.13 to 7-FD-q.18 – Does the Developer or Any Other Party to the Licensing Proceedings Seek to Challenge a Disputed Issue of Material Fact?
If the developer or any other party to the licensing proceedings seeks to challenge a disputed issue of material fact, the developer may file a written request for a hearing within 30 days after the deadline for submitting preliminary conditions to FERC (43 CFR 45.21). 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, the NPS will file an answer (43 CFR 45.24). Within 5 days of receipt of the answer, the Office of Environmental Policy and Compliance (OEPC) refers the case for hearing to either 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 Department of Interior (DOI), the hearing process is governed by 43 CFR 45.1 et seq.; if referred to the Office of Administrative Law Judges (OALJ), the hearing process is governed by 7 CFR 1.630 et seq.; and, if referred to the Department of Corrections (DOC), the hearing process is governed by 50 CFR 221.1 et seq..
7-FD-q.19 to 7-FD-q.23 – Does the Developer or Any Other Party to the Licensing Proceedings Seek to Propose Any Alternative Conditions?
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 an alternative condition. To propose an alternative, the developer must file a written proposal with the NPS within 30 days after the deadline for submitting preliminary conditions to FERC (43 CFR 45.71(a)(2)). Additional content requirements for written proposal can be found at 43 CFR 45.71(b).
After receiving a written proposal, and within 60 days of the deadline for filing comments to FERC’s NEPA document, the NPS must analyze proposed alternatives and file with FERC any adopted alternatives (43 CFR 45.72). The NPS must file with FERC a statement explaining the reasons for accepting or rejecting any alternatives and the basis for any modified conditions to be included in the license. The NPS must accept the proposed alternative if it determines, based on substantial evidence that, (a) the alternative condition provides for the adequate protection and utilization of the reservation, and (b) the alternative will either cost significantly less to implement or result in improved operation of the project works for electricity production (43 CFR 45.73).
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- Federal Power Act
- Title 18 CFR 4 Licenses, Permits, Exemptions, and Determination of Project Costs
- 18 CFR 5: Integrated License Application Process
- Title 7 CFR 1.601 et seq. Conditions in FERC Hydropower Licenses
- Title 43 CFR Part 45 Conditions and Prescriptions in FERC Hydropower Licenses
- Title 50 CFR Part 221 Prescriptions in FERC Hydropower Licenses
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