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In West Virginia, the [[West Virginia Division of Natural Resources]] (WVDNR) 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 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 5.1(d); 18 CFR 4.38. The WVDNR is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. [[West Virginia – W.V. Code §§ 20-2 et seq., Wildlife Resources|W. Va Code § 20-2]]. If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the WVDNR to issues 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 WVDNR and may require that the recommendation(s) become mandatory condition(s) of the FERC license. [[Federal Power Act|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, WVDNR 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.
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==12-WV-a.1 – Initiate Section 10(j) Analysis==
For hydropower projects subject to FERC licensing, section 10(j) of the [[Federal Power Act|FPA]] authorizes WVDNR to issue recommendations to FERC in order to protect, mitigate damage to, and enhance those fish and wildlife species and their necessary habitat. [[Federal Power Act|16 U.S.C. § 803(j)]].
WVDNR 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 WVDNR. These include:
*[[West Virginia – Division of Natural Resources – State Wildlife Action Plan|The West Virginia State Wildlife Action Plan]];
*[[West Virginia – Division of Natural Resources – Fishing and Boating Guide|WVDNR’s Fishing Regulations Guide]]; and
*[[West Virginia – W.V. Code §§ 20-2 et seq., Wildlife Resources|W. Va. Code § 20-2]].
==12-WV-a.2 to 12-WV-a.3 – Are Additional Documents or Studies Needed?==
If the record is incomplete, WVDNR may request that the developer provide additional documents. WVDNR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
==12-WV-a.4 to 12-WV-a.5 – Section 10(j) Recommendations==
Based upon WVDNR’s review of the hydropower project, WVDNR works with the developer to formulate [[Federal Power Act|FPA]] section 10(j) recommendations for the FERC license. [[Federal Power Act|16 U.S.C. § 803(j)]]. In developing its FPA section 10(j) recommendations, WVDNR considers and strives to maintain consistency with WVDNR policies and the requirements of the federal [[Endangered Species Act]], and the management plan for the affected area. WVDNR’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.
WVDNR submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from WVDNR 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. [[Federal Power Act|16 U.S.C. § 803(j)]].
Once FERC issues a license, WVDNR 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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[[West Virginia – Division of Natural Resources – State Wildlife Action Plan]];[[West Virginia – Division of Natural Resources – Fishing and Boating Guide]]
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[[Federal Power Act|16 U.S.C. §§ 791a-828c, Federal Power Act]];[[Endangered Species Act|16 U.S.C. §§ 1531-1544, Endangered Species Act]];[[18 CFR 5: Integrated License Application Process|18 C.F.R. §§ 5.1 - 5.31, Integrated License Application Process]];[[Title 18 CFR 4.38 Consultation Requirements|18 C.F.R. §§ 4.30 et seq., Consultation Requirements]];[[West Virginia – W.V. Code §§ 20-2 et seq., Wildlife Resources|West Virginia – W. Va. Code §§ 20-2 et seq., Wildlife Resources]]
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