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|Flowchart=File:12-MN-a - H - USACE State Fish and Wildlife License Recommendations 2017-2-10.pdf
 
|Flowchart=File:12-MN-a - H - USACE State Fish and Wildlife License Recommendations 2017-2-10.pdf
 
|Technology=Hydropower
 
|Technology=Hydropower
|PermitOverview=The [[Federal Power Act]] (“FPA”) requires the [[Federal Energy Regulatory Commission]] (“FERC”) to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. [[18 CFR 5: Integrated License Application Process|18 CFR 5.1(d)]]; [[Title 18 CFR 4.38 Consultation Requirements|18 CFR 4.38]].
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|InformationCurrentYear=2020
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|PermitOverview=In Minnesota, the [[Minnesota Department of Natural Resources]] (MNDNR) may issue license recommendations to the [[Federal Energy Regulatory Commission]] (FERC) designed to protect, mitigate damage to, and enhance fish and wildlife resources for hydropower projects subject to FERC’s licensing requirements. [[Federal Power Act|16 U.S.C. § 803(j)]].
  
  
The [[Minnesota Department of Natural Resources]] (“MNDNR”) is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. [[Minnesota - Minn. Stat. §§ 84.027 et seq., Powers and Duties|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 issues project-specific recommendations to FERC designed to protect, mitigate damage to, and enhance fish and wildlife resources. [[Federal Power Act|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]].
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The Federal Power Act (FPA) requires FERC to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. [[18 CFR 5: Integrated License Application Process|18 C.F.R. § 5.1(d)]]; [[Title 18 CFR 4.38 Consultation Requirements|18 C.F.R. § 4.38]]. The MNDNR is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. [[Minnesota - Minn. Stat. §§ 84.027 et seq., Powers and Duties|Minn. Stat. §84.027(2)]]. If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the MNDNR to issue recommendations to FERC to protect, mitigate damage to and enhance fish and wildlife resources. [[Federal Power Act|16 U.S.C. § 803(j)]]. FERC must consider the license recommendation(s) provided by the MNDNR and may require that the recommendation(s) become mandatory condition(s) of the FERC license. [[Federal Power Act|16 U.S.C. § 803(j)]].
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In addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process, the MNDNR also reviews proposed hydropower projects at US Army Corps of Engineers (USACE) non-powered dams. The content on this page is limited in scope and was designed to consider hydropower development at USACE non-powered dams. Because USACE hydropower projects are not eligible for a FERC exemption, this page does not discuss FPA section 30(c), which authorizes state agencies to issue mandatory terms and conditions for hydropower projects which are exempt from FERC licensing requirements.
 
|Description===12-MI-a.1 – Initiate Section 10(j) Analysis==
 
|Description===12-MI-a.1 – Initiate Section 10(j) Analysis==
  
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If the record is incomplete, MNDNR may request that the developer provide additional documents. MNDNR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
 
If the record is incomplete, MNDNR may request that the developer provide additional documents. MNDNR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
 
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==12-MN-a.4 to 12-MN-a.5 – Section 10(j) Recommendations==
 
==12-MN-a.4 to 12-MN-a.5 – Section 10(j) Recommendations==
  
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MNDNR submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from MNDNR for the protection, mitigation, and enhancement of fish and wildlife affected by the project unless FERC determines that:
 
MNDNR submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from MNDNR for the protection, mitigation, and enhancement of fish and wildlife affected by the project unless FERC determines that:
  
#A recommendation is inconsistent with the purposes and requirements of the FPA or other applicable provisions of law; and  
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*A recommendation is inconsistent with the purposes and requirements of the FPA or other applicable provisions of law; and  
#The alternative conditions selected by FERC comply with the requirement to adequately protect, mitigate damages to, and enhance fish and wildlife. [[Federal Power Act|16 U.S.C. § 803(j)]].
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*The alternative conditions selected by FERC comply with the requirement to adequately protect, mitigate damages to, and enhance fish and wildlife. [[Federal Power Act|16 U.S.C. § 803(j)]].
  
 
Once FERC issues a license, MNDNR continues to monitor the project to ensure the developer’s compliance with any conditions relevant to the protection, mitigation, and enhancement of fish and wildlife.
 
Once FERC issues a license, MNDNR continues to monitor the project to ensure the developer’s compliance with any conditions relevant to the protection, mitigation, and enhancement of fish and wildlife.
 
|Agency=Federal Energy Regulatory Commission;US Army Corps of Engineers;Minnesota Department of Natural Resources
 
|Agency=Federal Energy Regulatory Commission;US Army Corps of Engineers;Minnesota Department of Natural Resources
 
|References=[[Minnesota – Department of Natural Resources – State Wildlife Action Plan]]
 
|References=[[Minnesota – Department of Natural Resources – State Wildlife Action Plan]]
|Regulations=[[Federal Power Act]];[[Endangered Species Act]];[[18 CFR 5: Integrated License Application Process]];[[Title 18 CFR 4.38 Consultation Requirements]];[[Minnesota – Minn. Stat. §§ 84 et seq., Department of Natural Resources]];[[Minn. Stat. §§ 84.027 et seq., Powers and Duties]];[[Minnesota – Minn. Stat. §§ 86A et seq., Outdoor Recreation System]];[[Minnesota – Minn. Admin. R. §§ 6134 et seq., Endangered, Threatened, Special Concern Species]];[[Minnesota – Minn. Admin. R. §§ 6136 et seq., Natural Preservation]];[[Minnesota – Minn. Admin. R. §§ 6230 et seq., Wildlife Management]];[[Minnesota – Minn. Admin. R. §§ 6270 et seq., Aquatic Management Areas]]
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|Regulations=[[Federal Power Act]];[[Endangered Species Act]];[[18 CFR 5: Integrated License Application Process|18 C.F.R. § 5.10 et seq., Integrated License Application Process]];[[Title 18 CFR 4.38 Consultation Requirements|18 C.F.R. § 4.30 et seq., Application for Preliminary Permit, License or Exemption: General Provisions]];[[Minnesota – Minn. Stat. §§ 84 et seq., Department of Natural Resources]];[[Minn. Stat. §§ 84.027 et seq., Powers and Duties]];[[Minnesota – Minn. Stat. §§ 86A et seq., Outdoor Recreation System]];[[Minnesota – Minn. Admin. R. §§ 6134 et seq., Endangered, Threatened, Special Concern Species]];[[Minnesota – Minn. Admin. R. §§ 6136 et seq., Natural Preservation]];[[Minnesota – Minn. Admin. R. §§ 6230 et seq., Wildlife Management]];[[Minnesota – Minn. Admin. R. §§ 6270 et seq., Aquatic Management Areas]]
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}}
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{{RoadmapContact
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|Contact=Minnesota Department of Natural Resources: Hydropower Projects Planner
 
}}
 
}}

Latest revision as of 13:20, 13 July 2020

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Minnesota State Fish and Wildlife License Recommendations (12-MN-a)

Information current as of 2020
In Minnesota, the Minnesota Department of Natural Resources (MNDNR) may issue license recommendations to the Federal Energy Regulatory Commission (FERC) designed to protect, mitigate damage to, and enhance fish and wildlife resources for hydropower projects subject to FERC’s licensing requirements. 16 U.S.C. § 803(j).


The Federal Power Act (FPA) requires FERC to consult with state agencies responsible for the oversight and protection of fish, wildlife, and botanical resources. 18 C.F.R. § 5.1(d); 18 C.F.R. § 4.38. The MNDNR is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. Minn. Stat. §84.027(2). If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the MNDNR to issue recommendations to FERC to protect, mitigate damage to and enhance fish and wildlife resources. 16 U.S.C. § 803(j). FERC must consider the license recommendation(s) provided by the MNDNR and may require that the recommendation(s) become mandatory condition(s) of the FERC license. 16 U.S.C. § 803(j).

In addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process, the MNDNR also reviews proposed hydropower projects at US Army Corps of Engineers (USACE) non-powered dams. The content on this page is limited in scope and was designed to consider hydropower development at USACE non-powered dams. Because USACE hydropower projects are not eligible for a FERC exemption, this page does not discuss FPA section 30(c), which authorizes state agencies to issue mandatory terms and conditions for hydropower projects which are exempt from FERC licensing requirements.



State Fish and Wildlife License Recommendations Process


12-MI-a.1 – Initiate Section 10(j) Analysis

For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes MNDNR to issue recommendations to FERC in order to protect, mitigate damage to, and enhance those fish and wildlife species and their necessary habitat. 16 U.S.C. § 803(j).

MNDNR initiates the FPA section 10(j) analysis by reviewing the administrative record and identifying the potential impacts of the hydropower project on fish and wildlife species and their habitat.

Several policies, statutes and regulations may guide the FPA section 10(j) recommendations provided by MNDNR. These include:

12-MN-a.2 to 12-MN-a.3 – Are Additional Documents or Studies Needed?

If the record is incomplete, MNDNR may request that the developer provide additional documents. MNDNR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.

12-MN-a.4 to 12-MN-a.5 – Section 10(j) Recommendations

Based upon MNDNR’s review of the hydropower project, MNDNR works with the developer to formulate FPA section 10(j) recommendations for the FERC license. 16 U.S.C. § 803(j). In developing its FPA section 10(j) recommendations, MNDNR considers and strives to maintain consistency with MNDNR policies and the requirements of the federal Endangered Species Act, and the management plan for the affected area. MNDNR’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.

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

  • A recommendation is inconsistent with the purposes and requirements of the FPA or other applicable provisions of law; and
  • The alternative conditions selected by FERC comply with the requirement to adequately protect, mitigate damages to, and enhance fish and wildlife. 16 U.S.C. § 803(j).

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


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