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*Mandatory 30(c) terms and conditions to FERC for inclusion in a FERC hydropower exemption to prevent the loss of, or damage to, NOAA Fisheries managed fish and wildlife resources. [[Federal Power Act, 16 U.S.C. §§ 791a-828c| 16 U.S.C. § 823a(c)]].
 
*Mandatory 30(c) terms and conditions to FERC for inclusion in a FERC hydropower exemption to prevent the loss of, or damage to, NOAA Fisheries managed fish and wildlife resources. [[Federal Power Act, 16 U.S.C. §§ 791a-828c| 16 U.S.C. § 823a(c)]].
  
*Mandatory 18 fishway prescriptions to FERC for inclusion in a FERC License to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the construction, operation and maintenance of the hydropower project pursuant to Section 811 of the [[Federal Power Act, 16 U.S.C. §§ 791a-828c |Federal Power Act]]. [[Federal Power Act, 16 U.S.C. §§ 791a-828c |16 U.S.C. § 811]].
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*Mandatory 18 fishway prescriptions to FERC for inclusion in a FERC License to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the construction, operation and maintenance of the hydropower project[[Federal Power Act, 16 U.S.C. §§ 791a-828c |Federal Power Act]]. [[Federal Power Act, 16 U.S.C. §§ 791a-828c |16 U.S.C. § 811]].
  
 
*10(j) recommendations to FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation or management of the project. [[Federal Power Act, 16 U.S.C. §§ 791a-828c| 16 U.S.C. § 803(j)(1))]].  
 
*10(j) recommendations to FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation or management of the project. [[Federal Power Act, 16 U.S.C. §§ 791a-828c| 16 U.S.C. § 803(j)(1))]].  

Latest revision as of 16:34, 19 November 2019

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NOAA Fisheries - License Conditions and Recommendations (7-FD-p)

Information current as of 2019
NOAA Fisheries may provide fishway prescriptions, conditions, and recommendations to the Federal Energy Regulatory Commission (FERC) for inclusion as a condition to a FERC hydropower authorization (i.e., original or new hydropower license, or license exemption) for projects that may impact NOAA Fisheries managed lands or resources.

NOAA Fisheries may provide:

  • Mandatory 30(c) terms and conditions to FERC for inclusion in a FERC hydropower exemption to prevent the loss of, or damage to, NOAA Fisheries managed fish and wildlife resources. 16 U.S.C. § 823a(c).
  • Mandatory 18 fishway prescriptions to FERC for inclusion in a FERC License to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the construction, operation and maintenance of the hydropower project. Federal Power Act. 16 U.S.C. § 811.
  • 10(j) recommendations to FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation or management of the project. 16 U.S.C. § 803(j)(1)).
  • 10(a) recommendations to FERC for inclusion as a condition to a FERC License to ensure the protection, mitigation, and enhancement of NOAA Fisheries managed resources and uses. 16 U.S.C. § 803(a)(1). Specifically, NOAA Fisheries may provide 10(a) license recommendations for projects that may affect resources important to a National Marine Sanctuary, even if the project is not located on the reservation. "Reservation" means "national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but that do not include national monuments or national parks." 16 U.S.C. § 796(2). NOAA Fisheries may also provide 10(a) recommendations to FERC in support of other land management agencies’ 4(e) conditions, and federal and state fish and wildlife agency 10(j) recommendations for the protection, mitigation and enhancement of fish and wildlife resource or section 18 fishway prescriptions pursuant to the Federal Power Act, 16 U.S.C. §§ 791a-828c.


NOAA Fisheries has authority to issue recommendations, terms, conditions, and prescriptions to FERC for inclusion in a hydropower FERC License pursuant to sections 18, 10(j), and 10(a) of the Federal Power Act. 16 U.S.C. §§ 797(e); 803(a)(1).



NOAA Fisheries - License Conditions and Recommendations Process


7-FD-p.1 – Is the Proposed Hydropower Project Exempt from FERC Licensing?

NOAA Fisheries may issue mandatory 30(c) conditions to FERC for inclusion in the FERC License for hydropower projects that are exempt from the FERC licensing process in order to prevent the loss of, or damage to, NOAA Fisheries resources (e.g., fish or wildlife resources). 16 U.S.C. § 823a(c). If the proposed project may affect fish or wildlife species, NOAA Fisheries develops Section 30(c) mandatory conditions for inclusion in a FERC exemption for the protection of these resources. 16 U.S.C. § 823a(c). Projects that may qualify for an exemption from the FERC licensing process include small conduit hydroelectric facilities with a capacity of no more than 40 megawatts (MW) and small hydroelectric projects of 10 MW or less. 16 U.S.C. § 823a(b); 16 U.S.C. § 2705(d).

7-FD-p.2 to 7-FD-p.5 – File Mandatory 30(c) Terms and Conditions (Optional)

NOAA Fisheries may file mandatory 30(c) terms and conditions with FERC for inclusion in the FERC License within 60 days of a ready for environmental analysis (REA) determination by FERC. 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). NOAA Fisheries typically files 30(c) conditions to prevent loss of, or damage to, fish and wildlife resources that the hydropower project may affect. NOAA Fisheries must specifically identify and explain the mandatory term and/or condition and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(1).

If NOAA Fisheries does not submit 30(c) terms and conditions to FERC within 60 days of the REA determination, for a project that is exempt from the FERC licensing process, NOAA Fisheries must submit to FERC either:

  • Preliminary terms and conditions and a schedule showing the status of a proceeding to determine the terms and conditions and when the terms and conditions are expected to become final, or
  • A statement waiving NOAA Fisheries’ right to file 30(c) terms and conditions or indicating that NOAA Fisheries does not intend to file terms and conditions.

18 C.F.R. § § 4.34(b)(1).

7-FD-p.6 to 7-FD-p.10 – File Mandatory Section 18 Fishway Prescriptions (Optional)

NOAA Fisheries may prescribe mandatory Section 18 fishway prescriptions to FERC for inclusion in the FERC License within 60 days of an REA determination by FERC. 18 C.F.R. § 5.23(a); 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). NOAA Fisheries typically prescribes prescriptions to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the operation and maintenance of the project. 16 U.S.C. § 811. NOAA Fisheries must specifically identify and explain the mandatory prescription and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(1).

Integrated Licensing Process

If NOAA Fisheries does not submit Section 18 fishway prescriptions to FERC within 60 days of the REA determination, for a project utilizing the Integrated Licensing Process (ILP), FERC may consider NOAA Fisheries’ 18 conditioning authority waived. 18 C.F.R. § 5.23(a).

Alternative Licensing Process and Traditional Licensing Process

If NOAA Fisheries does not submit Section 18 fishway prescriptions to FERC within 60 days of the REA determination, for a project utilizing the Alternative Licensing Process (ALP) or Traditional Licensing Process (TLP), NOAA Fisheries must submit to FERC preliminary terms and conditions and a schedule showing the status of a proceeding to determine the terms and conditions and when the terms and conditions are expected to become final or a statement waiving NOAA Fisheries’ right to file Section 18 fishway prescriptions or indicating that NOAA Fisheries does not intend to file prescriptions. 18 C.F.R. § § 4.34(b)(1).

7-FD-p.11 to 7-FD-p.12 – Is There a Disputed Issue of Material Fact?

Any party to the FERC License proceeding may request a hearing on a disputed issue(s) of material fact with respect to any Section 18 fishway prescription filed by NOAA Fisheries. 50 C.F.R. §§221.1; 221.21(a); 16 U.S.C. §791(e). A “material fact” means a fact, if proved, may affect NOAA Fisheries’s decision whether to affirm, modify, or withdraw any condition or prescription. 50 C.F.R. § 221.2.

Any license party may file a request for hearing with the NOAA Fisheries’ Office of Habitat Conservation within 30-60 days after NOAA Fisheries files Section 18 fishway prescriptions with FERC. 50 C.F.R. § 221.21(a)(2). A license party must file a written proposal to Office of Habitat Conservation within 30 days after NOAA Fisheries files prescriptions with FERC or within 60 days of notice to FERC that NOAA Fisheries is reserving its authority to develop one or more prescription at a later time. 43 C.F.R. §§ 45.1(d)(1)-(2); 45.21(a)(1)-(2). The hearing request must include, at minimum, the following:

  • A numbered list of the factual issues in dispute, each stated in a single concise sentence;
  • The following information with respect to each issue:
    • the specific factual statements made or relied upon by NOAA Fisheries in dispute;
    • the basis of the opinion that those factual statements are unfounded or erroneous; and
    • the basis of the opinion that any factual dispute is material.
  • List of witnesses and exhibits intended to be presented at the hearing.

50 C.F.R. § 221.21(b)(1)-(2), (c).

With respect to any scientific studies, literature, and other documented information supporting the opinion, specific citations to the information must be provided with the request. 50 C.F.R. § 221.21(b)(3).

7-FD-p.13 – File Answer to Hearing Request (Optional)

NOAA Fisheries may file an answer to the hearing request within 50 days of hearing request receipt or 30 days after the expiration of any stay period pursuant to 50 C.F.R. § 221.24 with The Office of Habitat Conservation. 50 C.F.R. § 221.25(a). If NOAA Fisheries files an answer to the hearing request, the answer must include, at minimum:

  • An answer to each factual issue listed with an explanation of NOAA Fisheries’ position, including one or more of the following statements provided for in 50 C.F.R. § 221.25(b).
  • An indication of whether the hearing request will be consolidated with one or more hearing requests pursuant to 50 C.F.R. § 221.23, and if so, provide details about that consolidated hearing including those factors outlined in 50 C.F.R. § 221.25(b)(2).
  • A list of witnesses and exhibits that NOAA Fisheries intends to present at the hearing, other than solely for impeachment purposes.

50 C.F.R. § 221.25(b)-(c).

Note: If NOAA Fisheries does not file an answer to the hearing request, NOAA Fisheries is deemed to agree with the issues listed by the requester of the hearing as being factual, material, and in dispute. 50 C.F.R. § 221.25(e).

7-FD-p.14 to 7-FD-p.16 – Refer Case for Hearing

The Office of Habitat Conservation refers the case for hearing to an administrative law judge (ALJ) within the applicable department (e.g., DOI, FERC, Department of Agriculture, Department of Commerce) within 55 days of hearing request receipt or 35 days after the expiration of any stay period pursuant to 50 C.F.R. § 221.24. 50 C.F.R. § 221.26(a). At the time of referral, the Office of Habitat Conservation provides notice of the hearing request. 50 C.F.R. § 221.26(c). The hearing proceedings will be governed by the applicable department’s hearing procedures. For example, hearing proceedings within the U.S. Department of Commerce are governed by 43 C.F.R. §§ 45.10-60, while hearing proceedings within the U.S. Department of the Interior and the U.S. Department of Agriculture are governed by 43 C.F.R. §§ 45.1-45.75, Department of Interior Conditions and Prescriptions in FERC Hydropower Licenses and 7 C.F.R. §§ 1.601-1.675, Department of Agriculture Conditions in FERC Hydropower Licenses, respectively.

7-FD-p.17 to 7-FD-p.18 – Is an Alternative Section 18 Fishway Prescription Proposed?

Any party to a FERC License proceeding may propose an alternative Section 18 fishway prescription within 30-60 days after NOAA Fisheries files Section 18 fishway prescriptions with FERC. 16 U.S.C. § 823d(a); 50 C.F.R. § 221.71(a). A license party must file a written proposal to NOAA Fisheries within 30 days after NOAA Fisheries files prescriptions with FERC or within 60 days of notice to FERC that NOAA Fisheries is reserving its authority to develop one or more prescription and/or term or condition at a later time. 50 C.F.R. § 221.71(a)(1)-(2).

The written proposal must include, at minimum, the following:

  • A description of the alternative, in an equivalent detail to NOAA Fisheries’ condition;
  • An explanation of how the alternative prescription will be no less protective than the fishway prescribed by NOAA Fisheries;
  • An explanation of how the alternative, as compared to the preliminary prescription will:
    • cost significantly less to implement; or
    • result in improved operation of the project works for electricity production.
  • An explanation of how the alternative will affect:
    • energy supply, distribution, cost, and use;
    • flood control;
    • navigation;
    • water supply;
    • air quality; and
    • other aspects of environmental quality.
  • Specific citations to any scientific studies, literature, and other documented information relied on to support the proposal, including any assumptions made.

43 C.F.R. § 45.71(b)(1)-(5).

7-FD-p.19 to 7-FD-p.23 – Review Alternative Section 18 Fishway Prescription Proposal

NOAA Fisheries must review the alternative prescription proposal, determine whether to accept the alternative prescription and if applicable file with FERC any prescription that NOAA Fisheries adopts as its modified prescription within 60 days of FERC’s draft National Environmental Policy Act document (e.g., Environmental Assessment and Finding of No Significant Impact, Environmental Impact Statement and Record of Decision). 16 U.S.C. §823d(a)(2); 50 C.F.R. § 221.73(a)(1); 18 C.F.R. § 5.25(c).

NOAA Fisheries makes the determination on the proposal based on substantial evidence provided by the FERC License applicant (developer), any other party to the proceeding, or otherwise whether to accept the alternative prescription. 16 U.S.C. § 823d(a)(2); 50 C.F.R. § 221.74(a)(1). NOAA Fisheries may accept the proposal if the alternative prescription:

  • Provides for the adequate protection and utilization of the reservation; and
  • Will either, as compared to the condition initially provided, cost significantly less to implement or results in improved operation or the project works for electricity production.

16 U.S.C. §823d(a)(2); 50 C.F.R. § 221.74(b)(1)-(2).

NOAA Fisheries must file a written statement with FERC stating whether they accept or deny the alternative prescription proposal. The written statement must provide reasoning for accepting or denying the proposal and must demonstrate that NOAA Fisheries gave equal condition to the effects the condition adopted and alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition to the preservation of other aspects of environmental quality). NOAA Fisheries must also submit all studies, data and other factual information available and relevant to the decision. 16 U.S.C. §823d(a)(4); 50 C.F.R. § 221.74(d)-(e).

7-FD-p.24 – File 10(j) Recommendations (Optional)

NOAA Fisheries may file 10(j) recommendations with FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat). 16 U.S.C. § 803(j). NOAA Fisheries must file 10(j) recommendations with FERC within 60 days of a REA determination. 18 C.F.R. § § 4.34(b)(2); 16 U.S.C. § 797(e). NOAA Fisheries must specifically identify and explain the recommended term and/or condition and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(2); 18 C.F.R. § 5.26.

FERC has discretion on whether it will include a NOAA Fisheries’ section 10(j) recommendations as a condition(s) in the FERC License. 16 U.S.C. § 803(j).

7-FD-p.25 – File 10(a) Recommendations (Optional)

NOAA Fisheries may issue 10(a) with FERC for inclusion as a condition to a FERC License to ensure the protection, mitigation, and enhancement of fish and wildlife and other beneficial public uses. 16 U.S.C. § 803(a). NOAA Fisheries may use its 10(a) authority in cases where NOAA Fisheries does not have 4(e) conditioning authority because the project is not located on a reservation or does not impact a reservation interest. If the project is not within a reservation, but NOAA Fisheries has an interest in the land or resources where a project is located, NOAA Fisheries may provide section 10(a) recommendations to FERC to protect that interest.

NOAA Fisheries may also file 10(a) recommendations in support of another federal or state agency or Indian tribe’s mandatory section 4(e) conditions, section 10(j) recommendations to protect and mitigate damages to fish and wildlife, or section 18 fishway prescriptions to ensure upstream and downstream fish passage pursuant to the Federal Power Act.

FERC has discretion on whether it will include a NOAA Fisheries' section 10(a) recommendations as a condition(s) in the FERC License. 16 U.S.C. § 803(a).

7-FD-p.26 – File Alternative Section 4(e) Conditions (Optional)

NOAA Fisheries may also file alternative section 4(e) conditions if they are a party to the FERC Licensing proceeding. NOAA Fisheries may file section 4(e) conditions to land management agencies with authority to prescribe mandatory 4(e) conditions (e.g., Bureau of Indian Affairs, National Park Service). 16 U.S.C. § 823d(a); 50 C.F.R. § 221.71(a). NOAA Fisheries must file a written proposal to the appropriate agency within 30 days after the agency files 4(e) conditions with FERC or within 60 days of notice to FERC that the agency is reserving its authority to develop one or more term or condition at a later time. 50 C.F.R. § 221.71(a).

The written proposal must include, at minimum, the following:

  • A description of the alternative, in an equivalent detail to the agency's condition;
  • An explanation of how the alternative condition will provide for the adequate protection and utilization of the reservation;
  • An explanation of how the alternative, as compared to the preliminary condition, will:
    • cost significantly less to implement; or
    • result in improved operation of the project works for electricity production.
  • An explanation of how the alternative will affect:
    • energy supply, distribution, cost, and use;
    • flood control;
    • navigation;
    • water supply;
    • air quality; and
    • other aspects of environmental quality.
  • Specific citations to any scientific studies, literature, and other documented information relied on to support the proposal, including any assumptions made.

50 C.F.R. § 221.71(b)(1)-(5).


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