RAPID/Roadmap/7-FD-o

From Open Energy Information

< RAPID‎ | Roadmap

RAPIDRegulatory and Permitting Information Desktop Toolkit
My Projects

U.S. Fish and Wildlife Service - License Conditions and Recommendations (7-FD-o)

Information current as of 2019
The U.S. Fish and Wildlife Service (FWS) may provide fishway prescriptions, conditions, and recommendations to the Federal Energy Regulatory Commission (FERC) for inclusion as a condition to a FERC hydropower authorization (i.e., original or new hydropower license, or license exemption) for projects that may impact FWS managed lands or resources.

FWS may provide:

  • Mandatory 30(c) terms and conditions to FERC for inclusion in a FERC hydropower exemption to prevent the loss of, or damage to, FWS managed fish and wildlife resources. 16 U.S.C. § 823a(c).
  • Mandatory 4(e) terms and condition to FERC for inclusion in a FERC hydropower license if the hydropower project may interfere with or be inconsistent with FWS managed reservations (i.e., land) or interests in those lands, which includes National Fish Hatcheries area, National Waterfowl Management area, or lands located within the National Wildlife Refuge System, in order to ensure the protection and utilization of 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Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public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).
  • Mandatory 18 fishway prescriptions to FERC for inclusion in a FERC License to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the construction, operation and maintenance of the hydropower project pursuant to Section 811 of the Federal Power Act. 16 U.S.C. § 811.
  • 10(j) recommendations to FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation or management of the project. 16 U.S.C. § 803(j)(1)).
  • 10(a) recommendations to FERC for inclusion as a condition to a FERC License to ensure the protection, mitigation, and enhancement of FWS managed resources and uses. 16 U.S.C. § 803(a)(1). Specifically, FWS may provide 10(a) license recommendations for projects that may affect resources important to a National Fish Hatchery, National Waterfowl Management Area, or National Wildlife Refuge, even if the project is not located on the reservation. FWS 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.


FWS has authority to issue recommendations, terms, conditions, and prescriptions to FERC for inclusion in a hydropower FERC License pursuant to sections 18, 4(e), 10(j), and 10(a) of the Federal Power Act. 16 U.S.C. §§ 797(e); 803(a)(1).



U.S. Fish and Wildlife Service - License Conditions and Recommendations Process


7-FD-o.1 – Is the Proposed Hydropower Project Exempt from FERC Licensing?

FWS may issue mandatory 30(c) conditions to FERC for inclusion in the FERC License for hydropower projects that are exempt from the FERC licensing process in order to prevent the loss of, or damage to, FWS resources (e.g., fish or wildlife resources). 16 U.S.C. § 823a(c). If the proposed project may affect fish or wildlife species, FWS develops Section 30(c) mandatory conditions for inclusion in a FERC exemption for the protection of these resources. 16 U.S.C. § 823a(c). Projects that may qualify for an exemption from the FERC licensing process include small conduit hydroelectric facilities with a capacity of no more than 40 megawatts (MW) and small hydroelectric projects of 10 MW or less. 16 U.S.C. § 823a(b); 16 U.S.C. § 2705(d).

7-FD-o.2 to 7-FD-o.5 – File Mandatory 30(c) Terms and Conditions (Optional)

FWS may file mandatory 30(c) terms and conditions with FERC for inclusion in the FERC License within 60 days of a ready for environmental analysis (REA) determination by FERC. 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). FWS typically files 30(c) conditions to prevent loss of, or damage to, fish and wildlife resources that the hydropower project may affect. FWS 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).

If FWS does not submit 30(c) terms and conditions to FERC within 60 days of the REA determination, for a project that is exempt from the FERC licensing process, FWS must submit to FERC either:

  • 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 FWS’s right to file 30(c) terms and conditions or indicating that FWS does not intend to file terms and conditions.

18 C.F.R. § § 4.34(b)(1).

7-FD-o.6 – File Mandatory Section 18 Fishway Prescriptions (Optional)

FWS may prescribe mandatory Section 18 fishway prescriptions to FERC for inclusion in the FERC License within 60 days of a REA determination by FERC. 18 C.F.R. § 5.23(a); 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). FWS typically prescribes prescriptions to ensure upstream and downstream passage of diadromous or riverine fish and aquatic species during the operation and maintenance of the project. 16 U.S.C. § 811. FWS must specifically identify and explain the mandatory prescription and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(1).

7-FD-o.7 to 7-FD-o.12 – Does the Project Have the Potential to Interfere with or be Inconsistent with FWS Managed Lands or Interests in Those Lands?

FWS 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 FWS managed lands or interests in those lands, including National Fish Hatcheries, National Waterfowl Management Areas, and National Wildlife Refuges, to ensure the protection and utilization of those lands and resources. 16 U.S.C. § 797(e). FWS may issue mandatory 4(e) terms and conditions to FERC for inclusion in the FERC License within 60 days of a REA determination by FERC. 18 C.F.R. § 5.23(a); 18 C.F.R. § 4.34(b); 16 U.S.C. § 797(e). FWS typically issues 4(e) conditions if the hydropower project may affect FWS managed lands or resources on any FWS reservations, including National Fish Hatcheries, National Waterfowl Management Areas, and National Wildlife Refuges. 16 U.S.C. § 796(2). FWS 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 Federal Power Act. Escondido Water Co., v. La Jolla Indians et al., 466 U.S. 765 (1984).

Integrated Licensing Process

If FWS does not submit Section 18 fishway prescriptions and/or 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 FWS’s 18 and/or 4(e) conditioning authority waived. 18 C.F.R. § 5.23(a).

Alternative Licensing Process and Traditional Licensing Process

If FWS does not submit Section 18 fishway prescriptions and/or 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), FWS 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 FWS’s right to file Section 18 fishway prescriptions and/or 4(e) terms and conditions or indicating that FWS does not intend to file terms and conditions. 18 C.F.R. § § 4.34(b)(1).

7-FD-o.13 to 7-FD-o.14 – 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 Section 18 fishway prescription and/or 4(e) term or condition filed by FWS. 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 FWS’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 Interior’s Office of Environmental Policy and Compliance (OEPC) within 30-60 days after FWS files 18 prescriptions and/or 4(e) terms and conditions with FERC. 43 C.F.R. § 45.21(a)(2). A license party must file a written proposal to FWS within 30 days after FWS files prescriptions and/or terms and conditions with FERC or within 60 days of notice to FERC that FWS is reserving its authority to develop one or more prescription and/or 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 FWS 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-o.15 – File Answer to Hearing Request (Optional)

FWS 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 FWS files an answer to the hearing request, the answer must include, at minimum:

  • An answer to each factual issue listed with an explanation of FWS’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 FWS intends to present at the hearing, other than solely for impeachment purposes.

43 C.F.R. § 45.25(b)-(c).

Note: If FWS does not file an answer to the hearing request, FWS 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-o.16 to 7-FD-o.18 – 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-o.19 to 7-FD-o.20 – Is an Alternative Section 18 Fishway Prescription and/or 4(e) Term or Condition Proposed?

Any party to a FERC License proceeding may propose an alternative Section 18 fishway prescription and/or 4(e) term or condition within 30-60 days after FWS files Section 18 fishway prescriptions and/or 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 FWS within 30 days after FWS files terms and conditions with FERC or within 60 days of notice to FERC that FWS is reserving its authority to develop one or more prescription and/or 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 FWS’s condition;
  • An explanation of how the alternative:
    • if a condition, will provide for the adequate protection and utilization of the reservation; or
    • if a prescription, will be no less protective than the fishway prescribed by DOI;
  • 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-o.21 to 7-FD-o.25 – Review Alternative Section 18 Fishway Prescription and/or 4(e) Term or Condition Proposal

FWS must review the alternative prescription or condition proposal, determine whether to accept the alternative prescription and/or term or condition and if applicable file with FERC any prescription and/or term or condition that FWS 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).

FWS 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 prescription and/or term or condition. 16 U.S.C. § 823d(a)(2); 43 C.F.R. § 45.74(a)(1). FWS may accept the proposal if the alternative prescription and/or 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).

FWS must file a written statement with FERC stating whether they accept or deny the alternative prescription and/or term or condition proposal. The written statement must provide reasoning for accepting or denying the proposal and must demonstrate that FWS 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). FWS 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-o.26 – File 10(j) Recommendations (Optional)

FWS may file 10(j) recommendations with FERC for inclusion as a condition to a FERC License to adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat). 16 U.S.C. § 803(j). FWS must file 10(j) recommendations with FERC within 60 days of a REA determination. 18 C.F.R. § § 4.34(b)(2); 16 U.S.C. § 797(e). FWS must specifically identify and explain the recommended term and/or condition and their evidentiary and legal basis. 18 C.F.R. § 4.34(b)(2); 18 C.F.R. § 5.26.

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

7-FD-o.27 – File 10(a) Recommendations (Optional)

FWS may issue 10(a) with FERC for inclusion as a 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). FWS may use its 10(a) authority in cases where FWS does not have 4(e) conditioning authority because the project is not located on a reservation or does not impact a reservation interest. If the project is not within a reservation, but FWS has an interest in the land or resources where a project is located, FWS may provide section 10(a) recommendations to FERC to protect that interest.

FWS may also file 10(a) recommendations in support of another federal or state agency or Indian tribe’s mandatory section 4(e) conditions, section 10(j) recommendations to protect and mitigate damages to fish and wildlife, or section 18 fishway prescriptions to ensure upstream and downstream fish passage pursuant to the Federal Power Act.

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


Add to Project

Contact Information