Colorado State Fish and Wildlife License Conditions and Recommendations (12-CO-a)
If a project is exempt from FERC’s licensing procedures, section 30(c) of the FPA authorizes the CPW to issue mandatory terms and conditions, as appropriate, to FERC in order to prevent loss or damage to fish and wildlife. If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the CPW to issue recommendations to FERC to protect and mitigate damage to fish and wildlife resources. FERC must consider the license recommendation(s) provided by the CPW and may require that the recommendation(s) become mandatory condition(s) of the FERC license. 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 C.F.R. § 4.38. The CPW is the state agency charged with the management of Colorado’s wildlife and wildlife areas. The Colorado Wildlife Commission encourages an approach that (considering the potential impacts to wildlife, wildlife habitat, and the potential for habitat fragmentation) balances energy development with wildlife conservation. Colorado Wildlife Commission Policy: Energy Development in Colorado. The CPW participates in the FERC licensing process by consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process and reviewing proposed hydropower projects.
State Fish and Wildlife License Conditions and Recommendations Process
12-CO-a.1 – Is the Project Exempt from FERC licensing?
The FPA authorizes the CPW to issue mandatory terms and conditions for any hydropower projects that are exempt from FERC licensing. 16 U.S.C. § 823a(c). For hydropower projects not exempt from FERC licensing, the FPA grants the CPW authority to issue recommendations for the FERC license. 16 U.S.C. § 803(j).
12-CO-a.2 – Develop Section 30(c) Conditions
For hydropower projects that are exempt from FERC licensing, section 30(c) of the FPA authorizes the CPW to issue mandatory terms and conditions, as appropriate, in order to prevent the loss of or damage to fish and wildlife resources. 16 U.S.C. § 823a(c).
The CPW reviews proposed hydropower projects, considering the potential effects of the project on fish and wildlife (and recreation) resources. Based upon its analysis, the CPW will work with the developer to formulate FPA section 30(c) conditions for the hydropower project.
12-CO-a.3 – 30(c) Conditions
The CPW issues its FPA section 30(c) conditions to FERC. FERC must include all FPA section 30(c) conditions issued by the CPW in a timely manner in the licensing exemption. 16 U.S.C. § 823a(c); 18 C.F.R. § 4.34(f). For applications that have gone through a prescreening process, the CPW will issue its FPA 30(c) terms and conditions within ten days of the application being filed with FERC. Memorandum of Understanding between FERC and Colorado to Streamline the Authorization of Small Scale Hydropower Projects.
After FERC issues an exemption, the CPW monitors the developer’s compliance with the section 30(c) conditions included in the licensing exemption.
12-CO-a.4 – Initiate Section 10(j) analysis
For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes the CPW 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).
The CPW 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.
12-CO-a.5 to 12-CO-a.6 – Are Additional Documents or Studies Needed?
If the record is incomplete, the CPW may request that the developer provide the additional documents. The CPW may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
12-CO-a.7 to 12-CO-a.8 – 10(j) Recommendations
Based upon the CPW’s review of the hydropower project, the CPW works with the developer to formulate FPA section 10(j) recommendations for the FERC license. 16 USC 803(j). In developing its FPA section 10(j) recommendations, the CPW considers and strives to maintain consistency with the requirements of the Co. Rev. Stat. § 33-2-101, the Federal Endangered Species Act, and the management plan for the affected area. The CPW’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.
The CPW submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations received from the CPW 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, the CPW 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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