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Bureau of Indian Affairs - License Conditions and Recommendations (7-FD-l)

Information current as of 2019
The Bureau of Indian Affairs (BIA) may provide recommendations and conditions to the Federal Energy Regulatory Commission (FERC) for inclusion as a condition to a hydropower FERC License for projects that may impact BIA managed lands or resources.


BIA may provide:

  • Mandatory 4(e) terms and conditions to FERC for inclusion in a FERC license if the hydropower project may interfere with or be inconsistent with BIA managed lands or interests in those lands, including tribal land and Indian reservations, to ensure the protection and utilization of tribal lands and resources. 16 U.S.C. § 797(e). "Reservation" means "national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but that do not include national monuments or national parks. 16 U.S.C. § 796(2).
  • 10(a) recommendations to FERC for inclusion as condition to a FERC License to ensure the protection, mitigation, and enhancement of BIA managed resources and uses (e.g., trust assets of American Indians, Indian Tribes, and Alaska Natives). 16 U.S.C. § 803(a)(1). Specifically, BIA may provide 10(a) license recommendations for projects that may affect natural or cultural resources important to a tribe, even if the project is not located on a reservation. BIA may also provide 10(a) recommendations to FERC in support of other land management agencies 4(e) conditions, and federal and state fish and wildlife agency 10(j) recommendations for the protection, mitigation and enhancement of fish and wildlife resource or section 18 fishway prescriptions pursuant to the Federal Power Act, 16 U.S.C. §§ 791a-828c.


BIA has authority to issue recommendations, terms, and conditions to FERC for inclusion in a hydropower FERC License pursuant to sections 4(e) and 10(a) of the Federal Power Act. 16 U.S.C. §§ 797(e); 803(a)(1).



Bureau of Indian Affairs - License Conditions and Recommendations Process


7-FD-l.1 – Does the Project Have the Potential to Interfere with or be Inconsistent with BIA Managed Lands or Interests in Those Lands?

BIA may issue mandatory 4(e) terms and conditions to FERC for inclusion in a FERC License if the hydropower project may interfere with or be inconsistent with BIA managed lands or interests in those lands, including tribal land and Indian reservations, to ensure the protection and utilization of those lands and resources. 16 U.S.C. § 797(e).

"Reservation" means "national forests, tribal lands embraced within Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public purposes; but that do not include national monuments or national parks. 16 U.S.C. § 796(2).

7-FD-l.2 to 7-FD-l.6 – File Mandatory 4(e) Terms and Conditions (Optional)

BIA may issue mandatory 4(e) terms and conditions to FERC for inclusion in the FERC License within 60 days of a ready for environmental analysis (REA) determination by FERC. 18 C.F.R. § 5.23(a); 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). BIA typically issues 4(e) conditions to protect tribal lands and resources that the hydropower project may affect BIA managed lands or resources. For example, BIA has previously used 4(e) conditioning authority to maintain minimum flow levels, address erosion, mitigate water quality impacts, improve fish passage mechanisms and populations, restore or maintain fish and wildlife habitat around the project, and protect cultural resources among others. BIA must specifically identify and explain the mandatory term and/or condition and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(1).

FERC must incorporate 4(e) conditions into a FERC License that do not directly veto the FERC License or exceed the scope of section 4(e) authority pursuant to the 16 U.S.C. § 797(e)|Federal Power Act. Escondido Water Co., v. La Jolla Indians et al., 466 U.S. 765 (1984).

Integrated Licensing Process

If BIA does not submit 4(e) terms and conditions to FERC within 60 days of the REA determination, for a project utilizing the Integrated Licensing Process (ILP), FERC may consider BIA’s 4(e) conditioning authority waived. 18 C.F.R. § 5.23(a).

Alternative Licensing Process and Traditional Licensing Process

If BIA does not submit 4(e) terms and conditions to FERC within 60 days of the REA determination, for a project utilizing the Alternative Licensing Process (ALP) or Traditional Licensing Process (TLP), BIA must submit to FERC preliminary terms and conditions and a schedule showing the status of a proceeding to determine the terms and conditions and when the terms and conditions are expected to become final or a statement waiving BIA’s right to file 4(e) terms and conditions or indicating that BIA does not intend to file terms and conditions. 18 C.F.R. § § 4.34(b)(1).

7-FD-l.7 to 7-FD-l.8 – Is There a Disputed Issue of Material Fact?

Any party to the FERC License proceeding may request a hearing on a disputed issue(s) of material fact with respect to any 4(e) term or condition filed by BIA. 43 C.F.R. §§45.1; 45.21(a); 16 U.S.C. §791(e). A “material fact” means a fact, if proved, may affect BIA’s decision whether to affirm, modify, or withdraw any condition or prescription. 43 C.F.R. § 45.2.

Any license party may file a request for hearing with the Department of the Interior’s Office of Environmental Policy and Compliance (OEPC) within 30-60 days after BIA files 4(e) terms and conditions with FERC. 43 C.F.R. § 45.21(a)(2). A license party must file a written proposal to BIA within 30 days after BIA files terms and conditions with FERC or within 60 days of notice to FERC that BIA is reserving its authority to develop one or more term or condition at a later time. 43 C.F.R. §§ 45.1(d)(1)-(2); 45.21(a)(1)-(2). The hearing request must include, at minimum, the following:

  • A numbered list of the factual issues in dispute, each stated in a single concise sentence;
  • The following information with respect to each issue:
    • the specific factual statements made or relied upon by BIA in dispute;
    • the basis of the opinion that those factual statements are unfounded or erroneous; and
    • the basis of the opinion that any factual dispute is material.
  • List of witnesses and exhibits intended to be presented at the hearing.

43 C.F.R. § 45.21(b)(1)-(2), (c).

With respect to any scientific studies, literature, and other documented information supporting the opinion, specific citations to the information must be provided with the request. 43 C.F.R. § 45.21(b)(3).

7-FD-l.9 – File Answer to Hearing Request (Optional)

BIA may file an answer to the hearing request within 50 days of hearing request receipt or 30 days after the expiration of any stay period pursuant to 43 C.F.R. § 45.24 with OEPC. 43 C.F.R. § 45.25(a). If the BIA files an answer to the hearing request, the answer must include, at minimum:

  • An answer to each factual issue listed with an explanation of BIA’s position, including one or more of the following statements provided for in 43 C.F.R. § 45.25(b).
  • An indication of whether the hearing request will be consolidated with one or more hearing requests pursuant to 43 C.F.R. § 45.23, and if so, provide details about that consolidated hearing including those factors outlined in 43 C.F.R. § 45.25(b)(2).
  • A list of witnesses and exhibits that BIA intends to present at the hearing, other than solely for impeachment purposes.

43 C.F.R. § 45.25(b)-(c).

Note: If BIA does not file an answer to the hearing request, BIA is deemed to agree with the issues listed by the requester of the hearing as being factual, material and in dispute. 43 C.F.R. § 45.25(e).

7-FD-l.10 to 7-FD-l.12 – Refer Case for Hearing

OEPC refers the case for hearing to an administrative law judge (ALJ) within the applicable department (e.g., DOI, FERC, Department of Agriculture, Department of Commerce) within 55 days of hearing request receipt or 35 days after the expiration of any stay period pursuant to 43 C.F.R. § 45.24. 43 C.F.R. § 45.26(a). At the time of referral, OEPC provides notice of the hearing request. 43 C.F.R. § 45.26(c). The hearing proceedings will be governed by the applicable department’s hearing procedures. For example, hearing proceedings within the DOI are governed by 43 C.F.R. §§ 45.10-60, while hearing proceedings within the U.S. Department of Commerce and the U.S. Department of Agriculture are governed by 50 C.F.R. §§ 221.1-221.75, Department of Commerce Conditions and Prescriptions in FERC Hydropower Licenses and 7 C.F.R. §§ 1.601-1.675, Department of Agriculture Conditions in FERC Hydropower Licenses, respectively.


7-FD-l.13 to 7-FD-l.14 – Is an Alternative 4(e) Term or Condition Proposed?

Any party to a FERC License proceeding may propose an alternative 4(e) term or condition within 30-60 days after BIA files 4(e) terms and conditions with FERC. 16 U.S.C. § 823d(a); 43 C.F.R. § 45.71(a). A license party must file a written proposal to BIA within 30 days after BIA files terms and conditions with FERC or within 60 days of notice to FERC that BIA is reserving its authority to develop one or more term or condition at a later time. 43 C.F.R. § 45.71(a)(1)-(2).

The written proposal must include, at minimum, the following:

  • A description of the alternative, in an equivalent detail to BIA’s condition;
  • An explanation of how the alternative condition will provide for the adequate protection and utilization of the reservation;
  • An explanation of how the alternative, as compared to the preliminary condition will:
    • cost significantly less to implement; or
    • result in improved operation of the project works for electricity production.
  • An explanation of how the alternative will affect:
    • energy supply, distribution, cost, and use;
    • flood control;
    • navigation;
    • water supply;
    • air quality; and
    • other aspects of environmental quality.
  • Specific citations to any scientific studies, literature, and other documented information relied on to support the proposal, including any assumptions made.

43 C.F.R. § 45.71(b)(1)-(5).

7-FD-l.15 to 7-FD-l.19 – Review Alternative 4(e) Term or Condition Proposal

BIA must review the alternative term or condition proposal, determine whether to accept the alternative term or condition and if applicable file with FERC any term or condition that BIA adopts as its modified term or condition within 60 days of FERC’s draft National Environmental Policy Act document (e.g., Environmental Assessment and Finding of No Significant Impact, Environmental Impact Statement and Record of Decision). 16 U.S.C. §823d(a)(2); 43 C.F.R. § 45.73(a)(1); 18 C.F.R. § 5.25(c).

BIA makes the determination on the proposal based on substantial evidence provided by the FERC License applicant (developer), any other party to the proceeding or otherwise whether to accept the alternative term or condition. 16 U.S.C. § 823d(a)(2); 43 C.F.R. § 45.74(a)(1). BIA may accept the proposal if the alternative term or condition:

  • Provides for the adequate protection and utilization of the reservation; and
  • Will either, as compared to the condition initially provided, cost significantly less to implement or results in improved operation or the project works for electricity production.

16 U.S.C. §823d(a)(2); 43 C.F.R. § 45.74(b)(1)-(2).

BIA must file a written statement with FERC stating whether they accept or deny the alternative term or condition proposal. The written statement must provide reasoning for accepting or denying the proposal and must demonstrate that BIA gave equal condition to the effects the condition adopted and alternatives not accepted on energy supply, distribution, cost, and use; flood control; navigation; water supply; and air quality (in addition to the preservation of other aspects of environmental quality). BIA must also submit all studies, data and other factual information available and relevant to the decision. 16 U.S.C. §823d(a)(4); 43 C.F.R. § 45.74(d)-(e).

7-FD-l.20 – File 10(a) Recommendations (Optional)

BIA may file 10(a) recommendations with FERC for inclusion as condition to a FERC License to ensure the protection, mitigation, and enhancement of fish and wildlife and other beneficial public uses. 16 U.S.C. § 803(a)(1). Specifically, BIA may provide 10(a) license recommendations for projects that may affect natural or cultural resources (e.g., fish and wildlife populations or other resources) important to a tribe, even if the project is not located on a reservation or does not impact a reservation interest – where BIA has authority to issue mandatory 4(e) conditions. If the project is not within a reservation, but BIA or a given tribe has an interest in the land or resources where a project is located BIA may provide section 10(a) recommendations to FERC to protect that interest. For example, a tribe may have an interest in ceded territories or historic areas through treaties which reserve a particular right, like to hunt and fish.

BIA may also provide 10(a) recommendations to FERC in support of other land management agencies 4(e) conditions, and federal and state fish and wildlife agency 10(j) recommendations for the protection, mitigation and enhancement of fish and wildlife resource or section 18 fishway prescriptions pursuant to the Federal Power Act, 16 U.S.C. §§ 791a-828c.

BIA must file 10(a) recommendations with FERC within 60 days of a REA determination. 18 C.F.R. § 5.23(a); 18 C.F.R. § § 4.34(b); 16 U.S.C. § 797(e).

FERC has discretion on whether it will include an BIA’s section 10(a) recommendations as a condition(s) in the FERC License. 16 U.S.C. § 803(a).

7-FD-l.21 – File Alternative Section 18 Fishway Prescriptions (Optional)

BIA may also propose alternative section 18 fishway prescriptions if they are a party to the FERC Licensing proceeding. BIA may propose section 18 fishway prescriptions to U.S. Fish and Wildlife Service (USFWS) and/or NOAA Fisheries (NOAA) within 30-60 days after USFWS and/or NOAA files section 18 fishway prescriptions with FERC. 16 U.S.C. § 823d(a); 43 C.F.R. § 45.71(a). BIA must file a written proposal to USFWS and/or NOAA within 30 days after USFWS and/or NOAA section 18 fishway prescriptions with FERC or within 60 days of notice to FERC that USFWS and/or NOAA is reserving its authority to develop one or more term or condition at a later time. 43 C.F.R. § 45.71(a)(1)-(2).

The written proposal must include, at minimum, the following:

  • A description of the alternative, in an equivalent detail to USFWS and/or NOAA prescription;
  • An explanation of how the alternative prescription will be no less protective than the fishway prescribed by USFWS and/or NOAA;
  • An explanation of how the alternative, as compared to the preliminary condition will:
    • cost significantly less to implement; or
    • result in improved operation of the project works for electricity production.
  • An explanation of how the alternative will affect:
    • energy supply, distribution, cost, and use;
    • flood control;
    • navigation;
    • water supply;
    • air quality; and
    • other aspects of environmental quality.
  • Specific citations to any scientific studies, literature, and other documented information relied on to support the proposal, including any assumptions made.

43 C.F.R. § 45.71(b)(1)-(5).


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