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Indiana State Fish and Wildlife License Recommendations (12-IN-a)

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 5.1(d); 18 CFR 4.38.

The Indiana Department of Natural Resources (“IDNR”) is the state agency charged to protect, enhance, preserve, and wisely use natural, cultural, and recreational resources for the benefit of Indiana’s citizens through professional leadership, management, and education. Indiana Department of Natural Resources, What We Do Webpage. IDNR 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 located at US Army Corps of Engineers (“USACE”) non-powered dams. IDNR may issue recommendations to FERC regarding the proposed project to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803(j). USACE hydropower projects are not eligible for a FERC exemption and therefore are not subject to mandatory terms and conditions pursuant to section 30(c) of the Federal Power Act, but IDNR may issue section 10(j) license recommendations.

State Fish and Wildlife License Recommendations Process

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

For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes IDNR 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).

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

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

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

Based upon IDNR’s review of the hydropower project, IDNR 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, IDNR considers and strives to maintain consistency with IDNR policies and the requirements of the federal Endangered Species Act, and the management plan for the affected area. IDNR’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.

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

  1. A recommendation is inconsistent with the purposes and requirements of the FPA or other applicable provisions of law; and
  2. 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, IDNR 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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