New York State Fish and Wildlife License Conditions and Recommendations (12-NY-a)
The policy of the State of New York is “to conserve, improve, and protect its natural resources and environment and to prevent, abate and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being.” N.Y. Env. Con. L. §1-0101. The DFWMR 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 and issuing to FERC either mandatory terms and conditions or recommendations designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 USC 803.
State Fish and Wildlife License Conditions and Recommendations Process
12-NY-a.1 – Is the Project Exempt from FERC Licensing?
The FPA authorizes the DFWMR to issue mandatory terms and conditions for any hydropower projects that are exempt from FERC licensing. 16 USC 823a(c). For hydropower projects not exempt from FERC licensing, the FPA grants the DFWMR authority to issue recommendations for the FERC license. 16 USC 803(j).
12-NY-a.2 – Develop Section 30(c) Conditions
For hydropower projects that are exempt from FERC licensing, section 30(c) of the FPA authorizes the DFWMR to issue mandatory terms and conditions, as appropriate, in order to prevent the loss of or damage to fish and wildlife resources. 16 USC 823a(c).
The DFWMR reviews proposed hydropower projects, considering the potential effects of the project on fish and wildlife (and recreation) resources. Based upon its analysis, the DFWMR will work with the developer to formulate FPA section 30(c) conditions for the hydropower project.
12-NY-a.3 – 30(c) Conditions
The DFWMR issues its FPA section 30(c) conditions to FERC. FERC must include all FPA section 30(c) conditions issued by the DFWMR in a timely manner in the licensing exemption. 16 USC 823a(c); 18 CFR 4.34(f).
After FERC issues an exemption, the DFWMR monitors the developer’s compliance with the FPA section 30(c) conditions included in the licensing exemption.
12-NY-a.4 – Initiate Section 10(j) analysis
For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes the DFWMR to issue recommendations to FERC in order to protect, mitigate damage to, and enhance those fish and wildlife species and their necessary habitat. 16 USC 803(j).
The DFWMR 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-NY-a.5 to 12-NY-a.6 – Are Additional Documents or Studies Needed?
If the record is incomplete, the DFWMR may request that the developer provide the additional documents. The DFWMR may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
12-NY-a.7 to 12-NY-a.8 – 10(j) Recommendations
Based upon the DFWMR ’s review of the hydropower project, the DFWMR 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 DFWMR considers and strives to maintain consistency with the requirements of the N.Y. Env. Con. L. §1-0101 et seq., the Federal Endangered Species Act, and the management plan for the affected area. The DFWMR’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.
The DFWMR submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations received from the DFWMR 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 USC 803(j). Once FERC issues a license, the DFWMR 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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New York Division of Fish, Wildlife, and Marine Resources
Director-New York Division of Fish, Wildlife, and Marine Resources 518-402-8924 fwabbazabbainformation@decabbazabbanyabbazabbagov Visit Website