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Hydropower Biological Resource Assessment Overview (12)

Information current as of 2019

A hydropower developer should consider the proposed project's impacts on biological resources. Federal and state laws protect certain biological resources from particular impacts. A developer should assess the potential impacts a project may have on protected flora and fauna and their habitat.


Vegetation and topsoil removal during facility construction, including the development of associated access roads, parking areas, and transmission lines, can lead to loss of wildlife habitat, reduction in plant diversity, potential for increased erosion and the potential for the introduction of invasive or noxious weeds. Indirect impacts to vegetation could increase deposition of dust, spread of invasive or noxious weeds, and the increased potential of wildfires. In addition, adverse impacts to wildlife could occur during construction from:

  • Erosion and runoff;
  • Fugitive dust;
  • Noise;
  • Introduction and spread of invasive vegetation;
  • Modification, fragmentation, and reduction of habitat;
  • Exposure to contaminants; and
  • Interference with behavior activities.


Wildlife may be most affected by habitat reduction within the project site, access roads, canals, and transmission right-of-ways. Wildlife within surrounding habitats might also be affected if the construction activity (and associated noise) disturbs normal behaviors, such as feeding and reproduction. In addition, construction of intake structures, dams, and weirs can significantly alter the river that would provide water supply for the hydropower facility. These alterations could lead to habitat loss and/or degradation for aquatic species. Construction of the intake or dam could also harm aquatic populations either from the construction equipment or materials themselves, or increased sedimentation downstream. These impacts could be minimized by timing construction during periods of low flow and by excluding fish from the work area.

Office of Indian Energy and Economic Development – Tribal Energy and Environmental Information Website.

Typically, developers must consider: species listed under the federal Endangered Species Act, or designated as “candidates” for federal listing; migratory birds protected by the Migratory Bird Treaty Act; eagles protected by the Bald and Golden Eagle Protection Act; mammals protected by the Marine Mammal Protection Act; and any protected habitat. These species are protected because they offer rare qualities or adaptations that complete the native ecosystem.

State level protections may be even more stringent, protecting species and habitat not protected under federal law. It is critical to consult with area experts early in order to determine whether a conflict with protected biological resources can be avoided by choosing an alternative site for development. It may also be helpful to determine a time of year for development that does not conflict with wildlife.



Biological Resource Assessment Overview Process

12.1 – Conduct Preliminary Screening to Identify Potentially Affected Biological Resources

A developer should use some mechanism to conduct a preliminary screening that identifies biological resources that may be affected by the project. For example, the Western Association of Fish and Wildlife Agencies has a Crucial Habitat Screening Tool (CHAT), available at the CHAT website. While not mandatory, this step can help identify major biological issues at the outset that could critically affect the project. In addition, conducting a preliminary screening can support a finding that subsequent biological surveys are unnecessary.

12.2 – Conduct Biological Assessments to Identify Potentially Affected Biological Resources

The developer and the appropriate federal or state agency must conduct biological assessments to identify the proposed project’s potential effect on biological resources. By regulation, a biological assessment is prepared for "major construction activities" considered to be federal actions significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). A major construction activity is a construction project or other undertaking having similar physical impacts, which qualify under NEPA as a major federal action. Major construction activities include dams, buildings, pipelines, roads, water resource developments, channel improvements, and other such projects that modify the physical environment and that constitute major federal actions. As a rule of thumb, if an Environmental Impact Statement is required for the proposed action and construction-type impacts are involved, it is considered a major construction activity.

A biological assessment is also required if Endangered Species Act (ESA) listed species or critical habitat may be present in the project area of a major construction activity. It is optional if only proposed species or proposed critical habitat are involved. However, if both proposed and listed species are present, a biological assessment is required and must address both proposed and listed species if the action agency determines the action is likely to jeopardize the proposed species or adversely modify/destroy proposed critical habitat. An assessment may be recommended for other activities to ensure the agency's early involvement to increase the chances for resolution during informal consultation.

Section 7 Consultation Handbook, 3-11 to 3-12.

12.3 – Provide Species List

Upon written request, the U.S. Fish and Wildlife Service (FWS) and/or the National Oceanic Atmospheric Administrative Fisheries (NOAA Fisheries), also known as the National Marine Fisheries Service (NMFS), must provide the developer with a list of ESA-listed resources within the project (action) area.

12.4 to 12.5 – Does the Project have the Potential to Take Migratory Birds or Eggs?

A developer should consider the proposed projects impact on migratory birds or eggs. The developer should consult with the FWS to determine the presence of migratory birds and habitats that could potentially be impacted by the proposed activities for birds of conservation concern.

A list of bird "Species of Concern" identified by the Migratory Bird Program Strategic Plan 2004-2012 can be found as an attachment to the Bureau of Land Management’s (BLM) Bird Species of Conservation Concern List.

In addition, although not currently mandated by law – the FWS is also using a similar assessment and permit process where the project may result in the taking of bats. Thus, developers with projects in areas that may result in the taking of bats are encouraged to consult with the FWS. For more information, see:

Migratory Bird Considerations:
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12.6 to 12.7 – Are There Any Bald or Golden Eagle Activities Present at the Project Location?

A developer should consider the proposed projects impact on bald and golden eagles. If the proposed project location contains a nesting or wintering bald or golden eagle, then the developer needs a Bald & Gold Eagle Permit. In addition, any evidence of bald or golden eagle activities at the project location will likely require a Bald & Golden Eagle Permit. For more information, see:

Bald & Golden Eagle Permit:
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12.8 to 12.11 – Does the Project have the Potential to Impact Marine Mammals or Their Habitats?

A developer should consider the proposed projects impact on marine mammals and their habitats. The Marine Mammal Protection Act of 1972 (MMPA), as amended (USC 1361 et seq.), prohibits, with certain exceptions, the taking (e.g., harassment, injury, or killing) of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.)

Sections 101(a)(5)(A) and (D) of the MMPA may allow for the authorization of the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings may be granted if the taking will have a negligible impact on the species or stock(s), will not have an adverse impact on the availability of the species or stock(s) for subsidence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth.

The FWS has jurisdiction over species such as manatees, sea otters, polar bears, and Pacific walruses. The NOAA Fisheries has jurisdiction over most other marine mammal species, including pinnipeds other than those under the jurisdiction of the FWS (seals, sea lions), and all cetaceans (porpoises, dolphins, and whales).

The developer should contact the appropriate FWS or NOAA Fisheries office to discuss conclusions and obtain guidance in preparation of a request for incidental take authorization. For more information, see:

NOAA Fisheries - Marine Mammal Protection Act Incidental Harassment Authorization:
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U.S. Fish and Wildlife Service - Marine Mammal Protection Act Incidental Harassment Authorization:
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12.12 to 12.13 – Are There Federal Listed Species or Critical Habitats?

A developer should consider the proposed projects impact federally listed species and critical habitat. Listed species include both endangered species and threatened species as defined under the Endangered Species Act (ESA). The term ‘‘endangered species’’ means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man. Endangered Species Act, 16 U.S.C § 1532 (6). A “threatened species” means a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. For the most part, terrestrial or land-based species are under the jurisdiction of FWS, and marine species and anadromous fish are mostly under the jurisdiction of NOAA Fisheries.

Under Section 7 of the ESA, federal agencies are required to ensure that any actions they undertake do not jeopardize the existence of any listed species, or destroy or adversely modify designated critical habitat of such species. If a listed species or critical habitat may be present and affected, the agency must provide the NOAA Fisheries or the FWS with an evaluation on the likely effects of the action on species that may be adversely affected. The ESA Section 7 consultation requirements apply to development projects that have a federal nexus. All hydropower developments that require a Federal Energy Regulatory Commission (FERC) authorization (e.g., license, exemption) establish a federal nexus. For more information, see:

FERC - Endangered Species Act Section 7 Consultation:
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12.14 – Initiate License Conditions and Recommendations

Under section 30(c) of the Federal Power Act (FPA), the U.S. Fish and Wildlife Service (FWS), the NOAA Fisheries, and state fish and wildlife agencies may issue mandatory terms and conditions for hydropower projects that are exempt from the FERC licensing process in order to prevent the loss of, or damage to, fish or wildlife resources. 16 USC 823a(c).

Under section 10(j) of the FPA, the FWS, the NOAA Fisheries, and state fish and wildlife agencies may also issue recommendations, which FERC must consider, for the protection, mitigation, and enhancement of fish and wildlife that might be affected by a hydropower project. 16 USC 803(j).

If a hydropower project may affect the passage of fish species present within the project area (or species planned for introduction into the area), Section 18 of the FPA further authorizes the FWS and NOAA to prescribe mandatory fish passage improvements to ensure the safe, timely, and effective passage of fish. 16 USC 811.

U.S. Fish and Wildlife Service

U.S. Fish and Wildlife Service License Conditions and Recommendations:
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NOAA Fisheries

NOAA Fisheries License Conditions and Recommendations:
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State Fish and Wildlife Agencies

Alaska

In Alaska, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Alaska Department of Fish and Game (ADF&G). ADF&G has primary responsibility for protecting, maintaining, and improving the fish, game, and aquatic plant resources of the state and to manage their use and development in the best interest of the economy and the well-being of the state, consistent with the sustained yield principle. AS 16.05.020. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-AK-a(1)

Arkansas

In Arkansas, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Arkansas Game and Fish Commission (AGFC). AGFC is charged with the “control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the state.” Const. of Arkansas Amend. 35 §1. USACE hydropower projects are not eligible for a FERC exemption and therefore are not subject to mandatory terms and conditions pursuant to 30(c) of the Federal Power Act, but AGFC may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-AR-a

California

In California, a hydropower project may be subject to mandatory terms and conditions or recommendations from the California Department of Fish & Wildlife (CDFW). CDFW is dedicated to the conservation, protection, and management of fish, wildlife, and native plant species, and the habitat necessary to support biologically sustainable populations of those species. California Department of Fish and Wildlife: Federal Energy Regulatory Commission (FERC) Hydroelectric Projects. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-CA-a (1)

Colorado

In Colorado, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Colorado Parks and Wildlife (CPW). CPW is the state agency charged with the management of Colorado’s wildlife and wildlife areas. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-CO-a (2)

Illinois

In Illinois, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Illinois Department of Natural Resources (IDNR). IDNR is the state agency charged with managing the state’s wildlife and natural resources. 520 ILCS §5/1.3. 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. For more information, see:

State Fish and Wildlife License Recommendations:
12-IL-a

Indiana

In Indiana, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Indiana Department of Natural Resources (IDNR). IDNR is the state agency charged with protecting the state's environment and natural resources. I.C. §14-9-1-1. 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. For more information, see:

State Fish and Wildlife License Recommendations:
12-IN-a

Iowa

In Iowa, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Iowa Department of Natural Resources (IDNR). IDNR is Iowa’s state agency charged with “protecting the environment, and managing fish, wildlife, and land and water resources” in the state. I.C. §455A.2. 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. For more information, see:

State Fish and Wildlife License Recommendations:
12-IA-a

Kentucky

In Kentucky, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Kentucky Department of Fish & Wildlife Resources (KDFWR). KDFWR is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. K.R.S. § 150; 301 K.A.R.. 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 KDFWR may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-KY-a

Louisiana

In Louisiana, a hydropower developer may be subject to mandatory terms and conditions or recommendations from the Louisiana Department of Wildlife and Fisheries (LDWF). LDWF is charged with protecting, conserving, and replenishing wildlife and aquatic life in the state. L.R.S. § 56:1. 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 LDWF may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-LA-a

Minnesota

In Minnesota, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Minnesota Department of Natural Resources (MNDNR). MNDNR is the state agency charged with controlling the state’s wildlife and natural resources. Minn. Stat. §84.027(2). 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 MNDNR may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-MN-a

Mississippi

In Mississippi, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Mississippi Department of Wildlife, Fisheries and Parks (MDWFP). MDWFP is Mississippi’s state agency charged with conserving, managing, developing and protecting the state’s wildlife. Miss. Code §49-4-8. 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 MDWFP may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-MS-a

Missouri

In Missouri, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Missouri Department of Conservation (MDC). The MDC is Missouri’s state agency “charged with the control, management, conservation, and regulation of the bird, fish, game, forestry, and all wildlife resources of the state.” 3 C.S.R. § 30-1.010(1); Missouri – Mo. Rev. Stat. §§ 242.010 et seq., Missouri Wildlife and Forestry Law. 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 MDC may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-MO-a

New York

In New York, a hydropower project may be subject to mandatory terms and conditions or recommendations from the New York State Department of Environmental Conservation (DEC). DEC is the state agency charged with the management of New York’s fish, wildlife, and marine resources. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-NY-a

North Dakota

In North Dakota, a hydropower project may be subject to mandatory terms and conditions or recommendations from the North Dakota Game and Fish Department (NDGF). NDGF is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. N.D. Century Code §20.1-02-04. 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 NDGF may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-ND-a

Ohio

In Ohio, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Ohio Division of Wildlife (Division of Wildlife) within the Ohio Department of Natural Resources (ODNR). The Division of Wildlife 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. O.R.C. § 1531.03(C). 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 ODNR may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-OH-a

Pennsylvania

In Pennsylvania, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Pennsylvania Fish and Boat Commission (PFBC). 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. 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 PFBC may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-PA-a

Tennessee

In Tennessee, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Tennessee Wildlife Resources Agency (TWRA). TWRA is the state agency charged with protecting, propagating, increasing, preserving and conserving of the state’s wildlife resources. Tenn. Code Ann. §70-1-302. 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 TWRA may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-TN-a

Vermont

In Vermont, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Vermont Agency of Natural Resources (ANR). ANR is Vermont’s state agency with primary responsibility for protecting Vermont’s environment, natural resources and wildlife. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-VT-a

Washington

In Washington, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Washington State Department of Fish and Wildlife (WDFW). WDFW is the state agency charged with the preservation, protection, perpetuation, and management of the state’s wildlife and fish resources. RCW 77.04.012. For more information, see:

State Fish and Wildlife License Conditions and Recommendations:
12-WA-a(1)

West Virginia

In West Virginia, a hydropower project may be subject to mandatory terms and conditions or recommendations from the West Virginia Division of Natural Resources (WVDNR). WVDNR is the state agency charged with the protection, conservation, and enhancement of the state’s aquatic resources. W.V.C. §20-2. 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 WVDNR may issue section 10(j) license recommendations. For more information, see:

State Fish and Wildlife License Recommendations:
12-WV-a

Wisconsin

In Wisconsin, a hydropower project may be subject to mandatory terms and conditions or recommendations from the Wisconsin Department of Natural Resources (Wisconsin DNR). Wisconsin DNR is the state agency charged with controlling and conserving the state’s plant and wildlife resources. Wis. Stat. §23; Wis. Stat. §29. USACE hydropower projects are not eligible for a FERC exemption and therefore are not subject to mandatory terms and conditions pursuant to 30(c) of the Federal Power Act. For more information, see:

State Fish and Wildlife License Recommendations:
12-WI-a

12.15 to 12.16 – Is There Potential for the Project to Affect Land or Waters Within a Protected State Area?

A developer may need to obtain an approval from the appropriate state agency if the hydropower project has the potential to affect land or waters within a protected state area. For example, a developer may need to obtain a permit if the project has the potential to impact a fish-bearing stream or a protected state area.

Alaska

In Alaska, a hydropower developer may need a Fish Habitat Permit from the Alaska Department of Fish and Game’s (ADF&G’s) Division of Habitat (ADF&G - Habitat) if the project will be conducted below the ordinary high-water mark of an anadromous stream or if the project will affect fish passage in a fish-bearing stream. A developer may also need a Special Area Permit from the ADF&G if the project will use land or water within a Special Area. For more information, see:

State Permits for Protected Lands and Waters:
12-AK-b

12.17 to 12.18 – Will the Project Divert, Obstruct, or Change the Natural Flow or Bed of Any State Water?

A developer may need to obtain a state permit or approval if the proposed project will divert, obstruct, or change the natural flow or bed of any state water body.

Vermont

In Vermont, a hydropower developer may need a Stream Alteration Permit and must comply with the applicable reporting requirements if the project changes, alters, or modifies the course, current, or cross section of any water-course or designated outstanding resource waters, within or along the boundaries of Vermont either by movement, fill, or excavation of ten (10) cubic yards or more of instream material in any year. 10 V.S.A. §1021(a); Stream Alteration Rule, CVR 12-030-022 § 301(a). For more information, see:

Stream Alteration Permit:
19-VT-h

Washington

In Washington, a hydropower developer may need a Hydraulic Project Approval from the Washington Department of Fish and Wildlife for “any construction or performance of work that uses, diverts, obstructs, or changes the natural flow or bed of any fresh water or saltwater in the state…” W.R.C. §77.55.011(11); W.R.C. §77.55.021; W.A.C. §220-660-010. For more information, see:

Hydraulic Project Approval:
19-WA-h

12.19 to 12.20 – Will the Project Be Licensed Through FERC’s Integrated Licensing Process?

If the hydropower project will be licensed through FERC’s Integrated Licensing Process (ILP), biological resource assessment processes will be integrated with the FERC licensing process. Under the ILP, FERC and other agencies cooperate in the preparation of the necessary environmental document 18 CFR 5.1(e). However, as part of the FERC licensing process, state departments of fish and game may recommend license conditions for protection, mitigation, enhancement of fish and wildlife resources FPA §§ 10(a) and 10(j). All other hydropower projects will need to complete the biological resource assessments processes as described below. For more information, see:

FERC Integrated Licensing Process:
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12.21 to 12.22 – Does the Project Have the Potential to Impact Essential Fish Habitat?

A developer should consider the proposed projects impact on essential fish habitat. Where the project could impact fish habitat designated by NOAA Fisheries (also known as the National Marine Fisheries Service (NMFS)) as Essential Fish Habitat, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the authorizing agency is required to submit an Essential Fish Habitat Assessment to NOAA Fisheries. For more information, see:

Essential Fish Habitat Assessment:
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12.23 to 12.24 – Is There Potential for the Project to Take State Listed Endangered or Threatened Species?

A hydropower developer may need to obtain authorization from the appropriate state agency if the project is likely to result in the taking of a state listed endangered or threatened species.

New York

In New York, a hydropower developer may need an Incidental Take Permit from the New York State Department of Environmental Conservation (DEC) for a qualifying conduit hydropower facility or a FERC-exempted hydropower project that is likely to result in the taking of an endangered or threatened species. 6 CRR-NY 182.11. New York’s Environmental Conservation Law, § 11-0535 and Environmental Conservation Regulations, § 6 CRR-NY 182 give the DEC the authority to authorize the incidental take of a listed endangered or threatened species. 6 CRR-NY 182.11.

Note: The DEC does not require a hydropower developer to obtain an incidental take permit for a FERC-licensed project that is subject to regulation under Section 7 of the Federal Endangered Species Act.

For more information, see:

State Incidental Take Permit:
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12.25 – Continue with Project