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NOAA Fisheries - License Conditions and Recommendations (7-FD-p)

NOAA Fisheries, also known as the National Marine Fisheries Service (NMFS), is a federal agency responsible for the management, conservation, and protection of the Nation’s marine resources. NOAA Fisheries regulates commercial and recreational ocean fishing and manages marine species.

Salmon and other ecologically and economically important migrating fish species, such as shad and sturgeon, need access to freshwater habitat for spawning and rearing their young. Some fish need to swim thousands of miles through oceans and rivers to reach their destination . Hydropower installations, such as dams, can adversely impact fish habitat and marine resources.

NOAA Fisheries works with other federal agencies and hydropower plant developers to avoid or reduce impacts to fish and their habitat.

NOAA Fisheries works with FERC and hydropower developers to safeguard these species and their habitat by providing protection and fish passage measures in the FERC licensing process. Because FERC licenses have a term of 30 to 50 years, this is a once-in-a-generation opportunity to protect and improve many miles of habitat degraded by changes in water flow and quality from hydropower projects. NOAA Fisheries consults with the Federal Energy Regulatory Commission (FERC) and participates in the FERC licensing and exemption processes by, among other things, reviewing proposed hydropower projects and issuing conditions or recommendations, as appropriate, to address the impacts of such projects to fish species, essential habitat, spawning grounds, and to fish passage conditions.

NOAA Fisheries - License Conditions and Recommendations Process

7-FD-p.1 – Initiate Project Analysis

In order to assess any potential impacts to fish species, supporting habitat, spawning grounds, and/or fish passage, NOAA Fisheries will initiate an analysis of the developer’s proposed hydropower project.

7-FD-p.2 to 7-FD-p.3 - Is the Proposed Hydropower Project Exempt from FERC licensing?

Section 30(a) of the FPA authorizes NOAA Fisheries to 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).

7-FD-p.4 to 7-FD-p.5 – May the Proposed Project Affect Fish or Wildlife Species?

If the proposed project may affect fish or wildlife species, NOAA Fisheries will develop section 30(a) conditions for the protection of these resources. 16 USC 823a(c).

7-FD-p.6 to 7-FD-p.7 – 30(c) Conditions

Once developed, NOAA Fisheries issues the 30(c) conditions to FERC. If FERC issues an exemption for the proposed hydropower project, the FERC exemption will include the NOAA Fisheries 30(c) conditions. FERC will then continue to monitor the project for compliance with the 30(a) conditions. 16 USC 823b(a).

7-FD-p.8 – Assess Project’s Potential Impacts to Fish Species, Supporting Habitat, and Fish Passage

If the proposed hydropower project is subject to FERC licensing, NOAA Fisheries conducts a review of the project to assess the project’s potential to impact fish species and to determine whether the project is best adapted to a comprehensive plan to protect fish species, their supporting habitat, spawning grounds, and fish passage conditions.

7-FD-p.9 – Develop and Submit to FERC Section 10(a) Recommendations; Section 10(j) Recommendations; Preliminary Fishway Prescriptions

NOAA Fisheries may develop Section 10(a) recommendations, Section 10(j) recommendations and/or Section 18 fishway prescriptions for the FERC license, as appropriate.

Section 10(a) Recommendations

If a hydropower project may affect a National Marine Sanctuary, the Federal Power Act authorizes NOAA Fisheries to issue Section 10(a) recommendations to FERC for the conservation, protection, and enhancement of the sanctuary and associated resources. 16 USC 803(a)(2)(a).

Section 10(j) Recommendations

In 1986, Congress added section 10(j) to the FPA. The FPA requires that non-power interests be given “equal consideration” with power interests in the FERC licensing and relicensing processes. Section 10(j) emphasizes the importance of fish and wildlife in balancing developmental and non-developmental values. 16 USC 797(e). Under section 10(j), NOAA Fisheries may issue recommendations, which FERC must consider, for the protection, mitigation, and enhancement of fish that might be affected by a hydropower project. 16 USC 803(j).

Section 18 Preliminary Fishway Prescriptions

Section 18 of the Federal Power Act authorizes NOAA Fisheries to prescribe mandatory improvements for fish passage methods in order to ensure the safe, timely, and effective passage of fish at hydropower projects licensed by FERC. 16 USC 811.

If a hydropower project may affect the passage of fish species present within the project area (or species planned for introduction into the area), NOAA Fisheries may prescribe any upstream and downstream fishway passage requirements that NOAA Fisheries deems necessary in order to maintain all life stages of fish impacted by the project. 16 USC 811.

The Section 18 fishway prescription is limited to:

  1. Physical structures, facilities, or devices necessary to maintain all life stages of such fish; and
  2. Project operations and measures related to structures, facilities, or devices which are necessary to ensure the effectiveness of such structures, facilities, or devices for such fish.

16 USC 811; Pub. L. No. 102–486, Title XVII, §1701(b), 106 Stat. 3008 (Oct. 24, 1992).

Once NOAA Fisheries develops the license recommendations and/or fishway prescriptions it deems necessary to protect fish species, supporting habitat, spawning grounds and fish passage conditions, NOAA Fisheries submits its preliminary recommendations and fish passage prescriptions to FERC.

7-FD-p.10 to 7-FD-p.11 - Does Any Party Seek to Propose an Alternative Fishway Prescription or Challenge a Disputed Issue of Material Fact?

Section 241 of EPAct 2005 added section 33 to the Federal Power Act, allowing the FERC license applicant or any other party to the licensing proceeding to propose an alternative fishway prescription.

Section 241 of Energy Policy Act of 2005 (EPAct 2005) also amended section 18 of the Federal Power Act to provide that, after an opportunity for an agency trial-type hearing of no more than 90 days, any party to a license proceeding may seek a determination on the record of any disputed issues of material fact with respect to any agency’s mandatory fishway prescriptions. See 50 CFR 221.20 et seq..

The developer must file any proposal for an alternative fishway prescription and/or any request for a hearing regarding a disputed issue of material fact forming the basis of the mandatory fishway prescription with NOAA Fisheries within 30 days of the date on which NOAA Fisheries filed the preliminary fishway prescription.

7-FD-p.12 – Proposal for Alternative Prescription

To propose an alternative fishway prescription, the developer must file a written proposal with NOAA Fisheries within 30 days after the deadline for submitting preliminary prescriptions to FERC. 50 CFR 221.71(a)(2). Additional content requirements for written proposal can be found at 50 CFR 221.71(b).

7-FD-p.13 – Analyze Proposed Alternative Prescription

After receiving a written proposal, and within 60 days of the deadline for filing comments to FERC’s NEPA document, NOAA Fisheries must analyze proposed alternatives, hold a hearing , and file with FERC any adopted alternatives. 50 CFR 221.72.

NOAA Fisheries must accept and prescribe the alternative fishway prescription proposed by the developer in lieu of the NOAA Fisheries prescription if NOAA Fisheries determines, based on substantial evidence, that the alternative:

  1. Will be no less protective than the fishway initially prescribed; and
  2. Will either, as compared to the fishway initially prescribed, cost significantly less to implement or result in improved operation of the project works for electricity production.

16 U.S.C. 823d.

In making a determination whether to accept and prescribe the developer’s alternative fishway prescription, NOAA Fisheries must consider evidence provided by the developer, or otherwise available to NOAA Fisheries (including any evidence provided by FERC) on the implementation costs or operational impacts for electricity production. 16 U.S.C. 823d.

NOAA Fisheries must file a statement with FERC explaining the reasons for accepting or rejecting any alternatives and the basis for any modified prescriptions to be included in the license. 50 CFR 221.73.

7-FD-p.14 – Request for Hearing

To request a hearing, a written request must be filed within 30 days after the deadline for submitting preliminary prescriptions to FERC (50 CFR 221.21). Additional content requirements for written requests for a hearing can be found at 50 CFR 221.21.

After receiving a written request for a hearing, and within 45 days of the deadline for submitting preliminary prescriptions, NOAA Fisheries will file an answer (50 CFR 221.24).

7-FD-p.15 – Conduct Hearing

Within 5 days of receipt of the answer, NOAA Fisheries refers the case for hearing to a Coast Guard Administrative Law Judge (Coast Guard ALJ). (50 CFR 221.25). The hearing process will be governed by 33 CFR Part 20.

7-FD-p.16 – Determination on the Record

After the hearing, the Coast Guard ALJ hearing the case makes a determination on the record.

7-FD-p.17 – Modified Fishway Prescription?

If NOAA Fisheries accepts the developer’s alternative fishway prescription or the Coast Guard ALJ makes a determination in favor of the challenging party, NOAA Fisheries will file a modified fishway prescription with FERC.

7-FD-p.18 – Continue With FERC Licensing

Once the review process is complete, the FERC licensing process continues and FERC may issue the FERC license with the any fishway prescriptions or recommendations provided by NOAA Fisheries and as required by the FPA.

Section 18 Preliminary Fishway Prescriptions The fish passage requirements issued by NOAA Fisheries are mandatory and may not be altered or rejected by FERC. 16 USC 811.

Section 10(j) Recommendations FERC must consider and accept any 10(j) recommendations received from NOAA Fisheries for the protection, mitigation, and enhancement of fish 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 USC 803(j). FERC must include either the NOAA Fisheries recommendations or the alternative conditions selected by FERC in the FERC license.

Section 10(a) Recommendations FERC has discretion whether to condition the FERC license based on NOAA Fisheries’ 10(a) recommendations.

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