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New York State Fish and Wildlife License Conditions and Recommendations (12-NY-a)

Information current as of 2020
In New York, the New York Division of Fish, Wildlife, and Marine Resources (DFWMR) may issue mandatory terms and conditions for hydropower projects that are exempt from the Federal Energy Regulatory Commission’s (FERC) licensing requirement, or, a defensible set of recommendations for hydropower projects that are subject to FERC’s licensing requirements, which are designed to protect, mitigate damage to, and enhance fish and wildlife resources. 16 U.S.C. § 823a(c); 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 C.F.R. § 5.1(d); 18 C.F.R. § 4.38. The New York State Department of Environmental Conservation (DEC) is the state agency charged with the management of New York’s fish, wildlife, and marine resources. The DEC works with the DFWMR, a division of the DEC, to issue state fish and wildlife FERC license conditions and recommendations for hydropower projects. 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. Law §1-0101. The DFWMR 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.

If a project is exempt from FERC’s licensing procedures, section 30(c) of the FPA authorizes the DFWMR 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 DFWMR 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 DFWMR and may require that the recommendation(s) become mandatory condition(s) of the FERC license. 16 U.S.C. § 803(j).



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 U.S.C. § 823a(c). For hydropower projects not exempt from FERC licensing, the FPA grants the DFWMR authority to issue recommendations for the FERC license. 16 U.S.C. § 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 U.S.C. § 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 U.S.C. § 823a(c); 18 C.F.R. § 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 U.S.C. § 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 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 U.S.C. § 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. Law §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:

  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, 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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Edit 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