RAPID/Roadmap/7-FD-s

From Open Energy Information

< RAPID‎ | Roadmap

RAPIDRegulatory and Permitting Information Desktop Toolkit
My Projects

U.S. Forest Service - License Conditions and Recommendations (7-FD-s)

Information current as of 2019
The U.S. Forest Service (USFS) may provide conditions and recommendations to the Federal Energy Regulatory Commission (FERC) for inclusion in a hydropower FERC License. USFS 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 USFS managed reservations (e.g., National Forest System lands) in order to ensure the protection and utilization of National Forest System 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Indian reservations, military reservations, and other lands and interests in lands owned by the United States, and withdrawn, reserved, or withheld from private appropriation and disposal under the public land laws; also lands and interests in lands acquired and held for any public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) license recommendations to FERC for inclusion in a FERC License to ensure the protection, mitigation, and enhancement of USFS managed resources and uses (e.g., National Forest System lands). 16 U.S.C. § 803(a)(1). Specifically, USFS may provide 10(a) license recommendations for projects that may affect natural resources important to National Forest System land, even if the project is not located on National Forest System land. USFS 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 agencies' 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.


USFS 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).



U.S. Forest Service - License Conditions and Recommendations Process


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

USFS 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 USFS reservations or interests in those reservations, including National Forest System lands, to ensure the protection and utilization of those lands and resources. 16 U.S.C. § 797(e).

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

USFS 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). USFS typically issues 4(e) conditions to protect USFS managed lands and resources that the hydropower project may affect. USFS 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 USFS 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 USFS’s 4(e) conditioning authority waived. 18 C.F.R. § 5.23(a).

‘’’Alternative Licensing Process and Traditional Licensing Process’’

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

7-FD-s.7 to 7-FD-s.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 USFS. 7 C.F.R. §§1.601; 1.621(a); 16 U.S.C. §791(e). A “material fact” means a fact, if proved, may affect USFS’s decision whether to affirm, modify, or withdraw any condition or prescription. 7 C.F.R. § 1.602.

Any license party may file a request for hearing with the Department of Agriculture’s National Forest System Deputy Chief (NFS Deputy Chief) within 30-60 days after USFS files 4(e) terms and conditions with FERC. 7 C.F.R. § 1.621(a)(2). A license party must file a written proposal to USFS within 30 days after USFS files terms and conditions with FERC or within 60 days of notice to FERC that USFS is reserving its authority to develop one or more term or condition at a later time. 7 C.F.R. §§ 1.601(d)(1)-(2); 1.621(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 USFS 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.

7 C.F.R. § 1.621(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. 7 C.F.R. § 1.621(b)(3).

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

USFS 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 7 C.F.R. § 1.624 with the NFS Deputy Chief. 7 C.F.R. § 1.625(a). If the USFS files an answer to the hearing request, the answer must include, at minimum:

  • An answer to each factual issue listed with an explanation of USFS’s position, including one or more of the following statements provided for in 7 C.F.R. § 1.625(b).
  • An indication of whether the hearing request will be consolidated with one or more hearing requests pursuant to 7 C.F.R. § 1.623, and if so, provide details about that consolidated hearing including those factors outlined in 7 C.F.R. § 1.625(b)(2).
  • A list of witnesses and exhibits that USFS intends to present at the hearing, other than solely for impeachment purposes.

7 C.F.R. § 1.625(b)-(c).

Note: If USFS does not file an answer to the hearing request, USFS is deemed to agree with the issues listed by the requester of the hearing as being factual, material and in dispute. 7 C.F.R. § 1.625(e).

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

The NFS Deputy Chief refers the case for hearing to an administrative law judge (ALJ) within the applicable department (e.g., Department of Agriculture, FERC, Department of the Interior, Department of Commerce) within 55 days of hearing request receipt or 35 days after the expiration of any stay period pursuant to 7 C.F.R. § 1.624. 7 C.F.R. § 1.626(a). At the time of referral, the NFS Deputy Chief provides notice of the hearing request. 7 C.F.R. § 1.626(c). The hearing proceedings will be governed by the applicable department’s hearing procedures. For example, hearing proceedings within the U.S. Department of Agriculture are governed by 7 C.F.R. §§ 1.601-675, while hearing proceedings within the U.S. Department of Commerce and the U.S. Department of the Interior are governed by 50 C.F.R. §§ 221.1-75 and 43 C.F.R. §§ 45.10-75, respectively.

7-FD-s.13 to 7-FD-s.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 USFS files 4(e) terms and conditions with FERC. 16 U.S.C. § 823d(a); 7 C.F.R. § 1.671(a). A license party must file a written proposal to USFS within 30 days after USFS files terms and conditions with FERC or within 60 days of notice to FERC that USFS is reserving its authority to develop one or more term or condition at a later time. 7 C.F.R. § 1.671(a)(1)-(2).

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

  • A description of the alternative, in an equivalent detail to USFS’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.

7 C.F.R. § 1.671(b)(1)-(5).

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

USFS 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 USFS 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) pursuant to 18 C.F.R. § 5.25(c). 16 U.S.C. §823d(a)(2); 7 C.F.R. § 1.673(a)(1).

USFS 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); 7 C.F.R. § 1.674(a)(1). USFS 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); 7 C.F.R. § 1.674(b)(1)-(2).

USFS 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 USFS 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). USFS must also submit all studies, data, and other factual information available and relevant to the decision. 16 U.S.C. §823d(a)(4); 7 C.F.R. § 1.674(d)-(e).

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

USFS may file 10(a) recommendations with FERC for inclusion as a condition in 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). USFS 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). USFS may use its 10(a) authority in cases where USFS 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 USFS has an interest in the land or resources where a project is located USFS may provide section 10(a) recommendations to FERC to protect that interest.

USFS 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 USFS’s section 10(a) recommendations as a condition(s) in the FERC License. 16 U.S.C. § 803(a).

7-FD-s.21 to 7-FD-s.22 – File Alternative Section 18 Fishway Prescriptions (Optional)

USFS may also file alternative section 18 fishway prescriptions if they are a party to the FERC Licensing proceeding. USFS 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); 7 C.F.R. § 1.671(a). USFS 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. 7 C.F.R. § 1.671(a)(1)-(2).

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

  • A description of the alternative, in equivalent detail to the 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.

7 C.F.R. § 1.671(b)(1)-(5).


Add to Project

Contact Information











Edit Federal Energy Regulatory Commission
Regional Office Hydropower Contacts Visit Website