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North Dakota State Fish and Wildlife License Recommendations (12-ND-a)

Information current as of 2019
In North Dakota, the North Dakota Game and Fish Department (NDGF) 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. 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 NDGF is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. N.D. Century Code §20.1-02-04.. If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the NDGF to issues recommendations to FERC to protect, mitigate damage to and enhance fish and wildlife resources. 16 U.S.C. § 803(j). FERC must consider the license recommendation(s) provided by the NDGF and may require that the recommendation(s) become mandatory condition(s) of the FERC license. 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, the NDGF 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.



State Fish and Wildlife License Recommendations Process


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

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

NDGF 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 NDGF. These include:

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

If the record is incomplete, NDGF may request that the developer provide additional documents. NDGF may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project. However, NDGF rarely conducts any studies itself, and usually requests the developer to conduct any additional studies necessary.

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

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

NDGF submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from NDGF 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, NDGF 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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Edit North Dakota Game and Fish Department
Conservation Supervisor 701-328-6347 sdyke@ndabbazabbagov