Pennsylvania State Fish and Wildlife License Recommendations (12-PA-a)
In addition to consulting with other federal, state, and tribal resource management agencies involved in the FERC licensing process, the PFBC 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.
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 PFBC is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. 30 Pa. Con. Stat. § 3; PFBC Policy Manual. If a project is subject to FERC licensing, section 10(j) of the FPA authorizes the PFBC 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 PFBC 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 Recommendations Process
12-PA-a.1 – Initiate Section 10(j) Analysis
For hydropower projects subject to FERC licensing, section 10(j) of the FPA authorizes PFBC to issue recommendations to FERC in order to protect, mitigate damage to, and enhance those fish species and their necessary habitat. 16 U.S.C. § 803(j).
PFBC initiates the FPA section 10(j) analysis by reviewing the administrative record and identifying the potential impacts of the hydropower project on fish species and their habitat.
Several policies and regulations guide the FPA section 10(j) recommendations provided by PFBC. These include the:
- PFBC Policy Manual;
- State Wildlife Action Plan;
- Provisions laid out in 58 Pa. Code § 57, with particular reference to Subchapter A, Fisheries Policies, and Subchapter B, Policy on Development of Hydropower at Existing or Proposed Dams in the Commonwealth;
- Provisions laid out in 58 Pa. Code § 75 that address Pennsylvania threatened or endangered species, Pennsylvania candidate species, and special permits;
- Rare species impact reviews performed through the Pennsylvania Conservation Explorer Tool seen below; and
- Various state basin-specific management goals.
12-PA-a.2 to 12-PA-a.3 – Are Additional Documents or Studies Needed?
If the record is incomplete, PFBC may request that the developer provide additional documents. PFBC may also conduct studies to address information gaps concerning baseline values or potential impacts of the proposed project.
The developer may need to conduct a Pennsylvania Natural Diversity Inventory review using the Pennsylvania Conservation Explorer Tool. This review provides an analysis of potential rare species impacts. The Tool provides a response to the developer, which may provide:
- That there are no rare species impacts;
- Best management practices the developer should take; or
- Recommend consulting an appropriate state agency.
12-PA-a.4 to 12-PA-a.5 – Section 10(j) Recommendations
Based upon PFBC’s review of the hydropower project, PFBC 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, PFBC considers and strives to maintain consistency with the policies of 58 Pa. Code § 57, and the requirements of the federal Endangered Species Act, and the management plan for the affected area. PFBC’s recommendations may include measures addressing instream flow regimes, fish passage facilities, and/or vegetation and terrestrial wildlife management plans.
PFBC submits its FPA section 10(j) recommendations to FERC. FERC must consider and accept any recommendations from the PFBC 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, PFBC 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 C.F.R. § 5.10 et seq., Integrated License Application Process
- 18 C.F.R. § 4.30 et seq., Application for Preliminary Permit, License or Exemption: General Provisions
- Pennsylvania – 30 Pa Cons. Stat. §§ 3 et seq., Fish and Boat Commission
- Pennsylvania – 58 Pa. Code §§ 57 et seq., Statements of Policy
- Pennsylvania – 58 Pa. Code §§ 75 et seq., Endangered Species