U.S. Forest Service - FERC License Conditions and Recommendations (7-FD-s)
Under the Federal Power Act (FPA) the Federal Energy Regulatory Commission (FERC) may grant licenses for hydropower projects on National Forest System lands. Section 4(e) of the FPA authorizes the United States Forest Service (USFS) to impose mandatory conditions in the FERC license (16 U.S.C. § 797(e)). When a FERC licensed project is located on National Forest System lands, the USFS will submit to FERC a “4(e) Report” containing mandatory conditions as well as recommendations under section 10(a) of the FPA (see 16 U.S.C. § 803(a)). When a FERC licensed project is not located on National Forest System lands, but affects National Forest System lands and resources, the USFS may make recommendations to FERC under section 10(a) of the FPA to mitigate impacts or enhance natural resources (FSM 2700, Section 2770.1.1).
The USFS will not initiate its section 4(e) analysis until FERC has provided Notice of Acceptance of Application under 18 CFR 4.32(g). Under FERC’s Integrated Licensing Process (ILP), this notice is referred to as a Notice of Acceptance and Readiness for Environmental Analysis (FERC Handbook, page 3-13). Both types of notices are referred to below as a “Notice of Acceptance.”
In addition, section 4(e) requires FERC, to license only those projects that it finds are not inconsistent and do not interfere with the purpose for which the National Forest (reservation) was created (16 USC 797(e)). In making this determination, FERC will rely heavily on the conditions and/or recommendations submitted by the USFS (see 16 USC 803(a)(2)(B)).
U.S. Forest Service - FERC License Conditions and Recommendations Process
7-FD-s.1 – Contact USFS
Because the process for developing site-specific 4(e) conditions has been delegated to the regional level, the developer should contact regional USFS staff to determine the specific process and considerations the USFS will use when developing 4(e) Report (for contact information see Forest Service Guide to National Forests and Grasslands). The developer should contact the district ranger for the relevant National Forest System lands to obtain information about the process for developing site-specific conditions and applicable standard conditions. If the developer is unable to reach the district ranger the developer should contact the region’s regional hydropower coordinator to obtain information about hydropower development on National Forest System lands.
7-FD-s.2 – Is the Proposed Project Location on National Forest System Land?
For hydropower projects on National Forest System land licensed by FERC, the USFS will conduct analysis and develop a 4(e) Report to submit to FERC containing mandatory conditions to attach to the FERC license (16 USC 797(e)).
(See FSM 2700, Section 2770.1).
7-FD-s.3 to 7-FD-s.6 – Will the Project Affect National Forest System Lands or Resources?
If a project does not include National Forest System land, but indirect project impacts may adversely affect National Forest System lands or resources, the USFS will submit 10(a) recommendations to FERC (16 USC 803(a)). Whereas 4(e) conditions are mandatory, 10(a) recommendations are not mandatory and FERC has discretion whether to condition the license based on 10(a) recommendations (See FSM 2700, Section 2770.1). For projects proposed on National Forest System land, the USFS will use section 10(a) recommendations to include mitigation or enhancement measures contained in settlement agreements applicable to National Forest System lands or resources (FSM 2700, Section 2770.3.9).
7-FD-s.7 – Initiate Section 4(e) Analysis
Upon issuance by FERC of a Notice of Acceptance for a hydropower project on National Forest System land, the USFS will initiate its process for completing a section 4(e) analysis. Under section 4(e) of the FPA, the USFS has authority to require that a FERC license include conditions it deems necessary to protect the National Forest's resources while allowing wise development of the energy resource (16 USC 797(e)). If the USFS submits a 4(e) Report, the report may contain both conditions under section 4(e) and recommendations under 10(a) (FSM 2700, Section 2770.1).
7-FD-s.8 –Coordinate with FERC and other Federal and State Agencies to Determine Necessary Conditions
The USFS will coordinate with FERC and other federal and state agencies, as appropriate, when determining the license conditions necessary for the protection and utilization of National Forest System lands and resources (FSM 2700, Section 2770.3.4). To achieve consistency and avoid conflicting license conditions, this will include coordination with those agencies with authority to require mandatory license conditions (FSM 2700, Section 2770.3.6). Coordination with FERC will involve providing information and rationale to support 4(e) conditions, 10(a) recommendations, or other conditions contained in FERC environmental analyses (FSM 2700, Section 2770.3.11). USFS will also coordinate with relevant agencies, license applicant(s), tribal and local governments and other interested parties to develop mutually agreed upon license conditions (FSM 2700, Section 2770.3.7).
7-FD-s.9 – Determine 4(e) Conditions
The USFS will include standard conditions as well as develop site-specific conditions it determines are necessary for protecting the resources of the National Forest. The USFS will include standard license conditions which will likely be consistent by region (see Example USFS Preliminary Section 4(e) Report, at Enclosure I, page 4). In addition, the district manager will develop site-specific conditions for those situations where it would be desirable to have the force of the license to protect the resources of the National Forest (see Example USFS Preliminary Section 4(e) Report, at Enclosure I, page 11). The license conditions will not be used to gather information concerning the impacts of the proposed project that should be gathered as part of the pre-license study and plan development process under 18 CFR 4.38(2)(i). When developing the 4(e) Report, the USFS will coordinate license and special-use conditions (FSM 2700, Section 2773.4).
Standard conditions may cover the following topics:
- Approval of Changes
- Maintenance of Improvements on or Affecting National Forest System Lands
- Existing Claims
- Compliance with Regulations
- Surrender of License or Transfer of Ownership
- Protection of United States Property
- Damage to Land, Property, and Interests of the United States
- Risks and Hazards on National Forest System Lands
- Protection of Forest Service Special Status Species
- Surveys, Land Corners
- Pesticide-Use Restrictions on National Forest Systems Lands
- Modification of 4(e) Conditions after Biological Opinion or Water Quality Certification
- Ground Disturbing Activities
7-FD-s.10 – Require Any Necessary Supplemental Plans
The USFS may require supplemental plans for the management of National Forest System lands or resources. Supplemental plans may be required by the FERC license or by a special-use authorization. The developer is required to prepare any required supplemental plans and should consult with the USFS and other appropriate agencies when preparing the plans.
If the developer applies to FERC for a license, the USFS may require the development of supplemental plans through the 4(e) condition process or attach them to the special-use authorization depending upon the amount of direct control the Forest Service should have over the activity addressed by the plan. The USFS will select the required supplemental plans for inclusion in the 4(e) Report from (USFS Handbook 2709.15, chapter 62). Supplemental plans will be selected based on a determination of which plans should have the force of a license article in addition to or instead of being in the special-use authorization. Supplemental plans required in special-use authorizations typically address activities requiring direct oversight and administration by the designated Forest officer.
7-FD-s.11 – Determine 10(a) Recommendations
Under FPA section 10(a), the USFS may provide recommendations for FERC as license conditions. Whereas 4(e) conditions are mandatory, license conditions submitted under 10(a) are not mandatory and, as such, are often (including herein) referred to as recommendations. For projects proposed on National Forest System lands, the USFS will use section 10(a) recommendations to include mitigation or enhancement measures contained in settlement agreements applicable to National Forest System lands or resources (FSM 2700, Section 2770.3.9).
7-FD-s.12 to 7-FD-s.13 – Will 4(e) Response be Submitted by Deadline?
In order to facilitate the licensing process, FERC requests that agencies provide terms, conditions, prescriptions or recommendations in the agency’s initial comments filed on the draft application and that comments be filed no later than 60 days following public notice of the draft application ( 18 CFR 4.38(c)(5)). The USFS may request from FERC an extension beyond the 60-day comment period to submit its 4(e) Report, USFS may submit for a 30-, 60-, or 90-day extension which may be requested at any point throughout the 4(e) analysis process. However, extensions must be requested prior to the expiration of the initial comment period. If an extension is requested, FERC will continue to process the application and may issue the license without any 4(e) conditions other than the few standard conditions that would apply to any license (such as those requiring a Forest Service special-use authorization, environmental consultation, and limits on changing the project). Worthy of note, the D.C. Circuit has held that the FPA does not authorize FERC to place time restrictions on submittal of 4(e) conditions and, as such, FERC may not reject conditions because the conditions ‘were not timely filed’ (See City of Tacoma, Washington v. Federal Energy Regulatory Commission, 460 F.3d 53 (D.C. 2006)).
7-FD-s.14 – 4(e) Report
For any project that occupies National Forest System land, the USFS will submit a report to FERC in response to a Notice of Acceptance pursuant to section 4(e) of the Federal Power Act (FSM 2700, Section 2770.3.2). In the 4(e) Report, the Regional Forester will state the official position of the USFS regarding any affect on National Forest System lands and/or resources likely to result from the licensing of the project (FSM 2700, Section 2770.1).
The 4(e) Report will transmit to FERC those preliminary section 4(e) license conditions the USFS considers necessary to mitigate effects on National Forest System lands and resources that are directly attributable to project operations and maintenance. In addition, the report will include a statement of the USFS’s conclusions as to the project’s consistency or interference with National Forest purposes and the project’s consistency with the applicable land management plan (FSM 2700, Section 2770.3.2). This statement will identify the nature and extent of any significant inconsistency or interference.
Section 4(e) conditions must be:
- Necessary to protect and utilize National Forest System lands and resources; these conditions must be clearly described or guided by the applicable land management plan and authorities;
- Capable of achieving the desired results and supported by substantial evidence regarding their effectiveness; and
- Directly attributed to the operation, maintenance, and/or occupancy of the project on National Forest System lands.
7-FD-s.15 to 7-FD-s.20 – Does the Developer or Any Other Party to the Licensing Proceedings Seek to Challenge a Disputed Issue of Material Fact?
Section 241 of Energy Policy Act of 2005 (EPAct 2005) amended section 4(e) of the Federal Power Act to provide that any party to a license proceeding may seek a determination on the record, after opportunity for an agency trial-type hearing of no more than 90 days, of any disputed issues of material fact with respect to any agency’s mandatory conditions (see 7 CFR 1.620 et seq.). To request a hearing, a written request must be filed within 30 days after the deadline for submitting preliminary conditions to FERC (7 CFR 1.621). Additional content requirements for written requests for a hearing can be found at 7 CFR 1.621.
After receiving a written request for a hearing, and within 45 days of the deadline for submitting preliminary conditions, the USFS will file an answer (7 CFR 1.624). Within 5 days of receipt of the answer, the Deputy Chief of the Forest Service refers the case for hearing either to the Office of Administrative Law Judges (OALJ) within the USDA, the Department of the Interior’s (DOI) Office of Hearing and Appeals, or the Department of Commerce’s (DOC) designated ALJ office (7 CFR 1.625). If the case is referred to the OALJ, the hearing process will be governed by 7 CFR 1.630 et seq.; if DOI, governed by 43 CFR 45.1 et seq.; and if DOC, governed by 50 CFR 221.1 et seq..
7-FD-s.21 to 7-FD-s.24 – Does the Developer or Any Other Party to the Licensing Proceedings Seek to Propose any Alternative Conditions?
Section 241 of EPAct 2005 added section 33 to the Federal Power Act allowing the license applicant or any other party to the license proceeding to propose an alternative condition. To propose an alternative, the developer must file a written proposal with the USFS within 30 days after the deadline for submitting preliminary conditions to FERC (7 CFR 1.671(a)(2)). Additional content requirements for written proposal can be found at 7 CFR 1.671(b).
After receiving a written proposal, and within 60 days of the deadline for filing comments to FERC’s NEPA document, the USFS must analyze proposed alternatives and file with FERC any adopted alternatives (7 CFR 1.672). The USFS must file with FERC a statement explaining the reasons for accepting or rejecting any alternatives and the basis for any modified conditions or prescriptions to be included in the license. The USFS must accept the proposed alternative if it determines, based on substantial evidence that, (a) the alternative condition provides for the adequate protection and utilization of the reservation, and (b) the alternative will either cost significantly less to implement or result in improved operation of the project works for electricity production (7 CFR 1.673).
7-FD-s.25 – Continue with FERC Licensing Process
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- Federal Power Act
- Title 7 CFR 1.601 et seq. Conditions in FERC Hydropower Licenses
- Title 18 CFR 4 Licenses, Permits, Exemptions, and Determination of Project Costs
- Title 18 CFR 4.38 Consultation Requirements
- Title 43 CFR Part 45 Conditions and Prescriptions in FERC Hydropower Licenses
- Title 50 CFR Part 221 Prescriptions in FERC Hydropower Licenses
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