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Ohio State Fish and Wildlife License Recommendations (12-OH-a)

Information current as of 2020
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 C.F.R. § 5.1(d); 18 C.F.R. § 4.38. The Ohio Division of Wildlife (“Division of Wildlife”) within the Ohio Department of Natural Resources (“ODNR”) is Ohio’s state agency charged with investigating, considering, and making recommendations “in all matters pertaining to the protection, preservation, propagation, possession, and management” of Ohio’s wildlife. Ohio Rev. Code § 1531.03(C). The Division of Wildlife 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 U.S. Army Corps of Engineers (“USACE”) non-powered dams. The Division of Wildlife 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. 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-OH-a.1 – Initiate Section 10(j) Analysis

For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes the Division of Wildlife 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 Division of Wildlife 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-OH-a.2 to 12-OH-a.3 – Are Additional Documents or Studies Needed?

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

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

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

The Division of Wildlife submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendation from ODNR 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 adequate protect, mitigate damages to, and enhance fish and wildlife. 16 U.S.C. § 803(j).

Once FERC issues a license, the Division of Wildlife continues to monitor the project to ensure the developer’s compliance with any conditions relevant to the projection, mitigation, and enhancement of fish and wildlife.

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