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Pennsylvania State Fish and Wildlife License Recommendations (12-PA-a)

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 CFR 5.1(d); 18 CFR 4.38.

The Pennsylvania Fish and Boat Commission (“PFBC”) is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. 30 Pa.C.S. § 3;PFBC Policy Manual. PFBC 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 at US Army Corps of Engineers ("USACE") non-powered dams. Additionally, PFBC issues project-specific recommendations to FERC designed to protect, mitigate damage to, and enhance aquatic 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-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 P.C. § 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 P.C. § 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 P.C. § 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:

  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, 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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Contact Information

Edit Pennsylvania Fish and Boat Commission
Environmental Services Contact 814-359-5133 mhartle@paabbazabbagov