Kentucky State Fish and Wildlife License Recommendations (12-KY-a)
The Kentucky Department of Fish & Wildlife Resources (“KDFWR”) is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. K.R.S. § 150; 301 K.A.R.. KDFWR 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. Additionally, KDFWR issues project-specific recommendations to FERC designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 803. 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-KY-a.1 – Initiate Section 10(j) Analysis
For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes KDFWR 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).
KDFWR 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 KDFWR. These include:
- The Kentucky State Wildlife Action Plan;
- KDFWR’s Fishing and Boating Guide;
- K.R.S. § 150; and
- 301 K.A.R.
12-KY-a.2 to 12-KY-a.3 – Are Additional Documents or Studies Needed?
If the record is incomplete, KDFWR may request that the developer provide additional documents. KDFWR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
12-KY-a.4 to 12-KY-a.5 – Section 10(j) Recommendations
Based upon KDFWR’s review of the hydropower project, KDFWR 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, KDFWR considers and strives to maintain consistency with the KDFWR policies and the requirements of the federal Endangered Species Act, and the management plan for the affected area. KDFWR’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.
KDFWR submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from the KDFWR 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, KDFWR 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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- Federal Power Act
- Endangered Species Act
- 18 CFR 5: Integrated License Application Process
- Title 18 CFR 4.38 Consultation Requirements
- Kentucky – Ky. Rev. Stat. §§ 150 et seq., Fish and Wildlife Resources
- Kentucky – 301 Ky. Admin Reg. et seq., Tourism, Arts and Heritage Cabinet – Department of Fish and Wildlife Resources