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National Park Service - License Conditions and Recommendations (7-FD-q)

Information current as of 2019
The National Park Service (NPS) may provide conditions and recommendations to the Federal Energy Regulatory Commission (FERC) for inclusion in a hydropower FERC License. NPS 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 NPS managed reservations (i.e., National Park System units). 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Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public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). NPS managed lands are divided into units, which “include any area of land and water administered by the Secretary, acting through the Director, for park, monument, historic, parkway, recreational, or other purposes.” 54 U.S.C. §§ 100102, 100501.
  • 10(a) license recommendations to FERC for inclusion as a condition in a FERC License to ensure the protection, mitigation, and enhancement of NPS managed resources and uses. 16 U.S.C. § 803(a)(1). Specifically, NPS may provide 10(a) license recommendations for projects that may affect natural or cultural resources important to an NPS unit, even if the project is not located on a reservation. NPS 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.


NPS 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).



National Park Service - License Conditions and Recommendations Process


7-FD-q.1 to 7-FD-q.2 – Is the Project Sited Within a National Park or National Monument Established Prior to 1921?

FERC is not allowed to grant a FERC License for dams, conduits, reservoirs power houses, transmission lines, or other works for storage or carriage of water within the boundaries of any NPS managed national parks and national monuments established prior to 1921 without Congressional approval. 16 U.S.C. §§ 796, 797a.

7-FD-q.3 – Will the Project Have a Direct Adverse Impact any NPS Unit?

FERC cannot issue an original license to a new hydropower project located within the boundaries of any NPS managed land unit of the National Park System if it would have a direct adverse effect on those lands. 16 U.S.C. § 797c.

7-FD-q.4 – Does the Project Have the Potential to Interfere with or be Inconsistent with NPS Managed Lands or Interests in Those Lands?

NPS 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 NPS managed reservations (i.e., NPS units) or interests in those reservations to ensure the protection and utilization of those lands and resources. 16 U.S.C. § 797(e).

Note: The Federal Power Act expressly excludes national monuments and national parks from the definition of “reservation.”

7-FD-q.5 to 7-FD-q.9 – File Mandatory 4(e) Terms and Conditions (Optional)

NPS may issue mandatory 4(e) terms and conditions to FERC for inclusion in the FERC License or a waiver 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). NPS typically prescribes 4(e) conditions to protect NPS managed land unit resources that the hydropower project may affect. NPS 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. 16 U.S.C. § 797(e); Escondido Water Co., v. La Jolla Indians et al., 466 U.S. 765 (1984).

Integrated Licensing Process

If NPS 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 NPS’s 4(e) conditioning authority waived. 18 C.F.R. § 5.23(a).

Alternative Licensing Process and Traditional Licensing Process

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

7-FD-q.10 to 7-FD-q.11 – Is There Disputed Issue of Material Fact?

Any party to the FERC License proceedings may request a hearing on a disputed issue(s) of material fact with respect to any 4(e) term or condition filed by NPS 43 C.F.R. §§45.1; 45.21(a); 16 U.S.C. §791(e). A “material fact” means a fact that, if proved, may affect NPS’s decision whether to affirm, modify, or withdraw any condition or prescription. 43 C.F.R. § 45.2. A license party must file a written proposal to NPS within 30 days after NPS files terms and conditions with FERC or within 60 days of notice to FERC that NPS 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-q.12 – File Answer to Hearing Request (Optional)

NPS 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 the Office of Environmental Policy and Compliance (OEPC). 43 C.F.R. § 45.25(a). If the NPS files an answer to the hearing request, the answer must include, at minimum:

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

43 C.F.R. § 45.25(b)-(c).

Note: If NPS does not file an answer to the hearing request, NPS 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-q.13 to 7-FD-q.15 – Refer Request for Hearing

OEPC refers the request 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-q.16 to 7-FD-q.17 – 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 NPS 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 NPS within 30 days after BIA files terms and conditions with FERC or within 60 days of notice to FERC that NPS 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 NPS’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-q.18 to 7-FD-q.22 – Review Alternative 4(e) Term or Condition Proposal

NPS 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 NPS adopts as its modified term or condition within 60 days of FERC’s draft National Environmental Policy Act document pursuant to 18 C.F.R. § 5.25(c). 16 U.S.C. §823d(a)(2); 43 C.F.R. § 45.73(a)(1).

NPS 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). NPS 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).

NPS 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 NPS 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). NPS 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-q.23 – File 10(a) Recommendations (Optional)

NPS may issue 10(a) recommendations to FERC for inclusion as a condition in a hydropower License to ensure the protection, mitigation, and enhancement of fish and wildlife and other beneficial public uses. 16 U.S.C. § 803(a). NPS 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). NPS may use its 10(a) authority in cases where NPS does not have 4(e) conditioning authority because the project is not located on an NPS unit or does not impact a reservation interest. If the project is not within an NPS unit, but NPS has an interest in the land or resources where a project is located, NPS may provide section 10(a) recommendations to FERC to protect that interest.

NPS can 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 down stream fish passage pursuant to the Federal Power Act.

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

7-FD-q.24 – File Alternative Section 18 Fishway Prescriptions (Optional)

NPS may also file alternative Section 18 fishway prescriptions if they are a party to the FERC Licensing proceeding. NPS 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). NPS 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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