FWCA Application to Hydropower Project Licensing at FERC

FWCA Application to Hydropower Project Licensing at FERC NCTC FWCA Training Houston, TX March 2 -6, 2020 Jane Ledwin Infrastructure Streamlining Coordinator

FWCA Application to Hydropower Project Licensing at FERC Presentation Outline • • • Who is FERC? What Does FERC Do? What’s Special about working with FERC Compared to Other Federal Agencies Subject to the FWCA? FPA provisions

FWCA Application to Hydropower Project Licensing at FERC and its Mission • Federal Energy Regulatory Commission (FERC) is an independent federal agency established by the Federal Power Act. • Issue licenses for and regulate the construction, operation, and maintenance of non-federal hydropower projects.

FWCA Application to Hydropower Project Licensing at FERC Working with FERC • • Everything FERC does is viewed through the lens of the Federal Power Act. Thinks and acts like lawyers and judges! All decisions based on a written record (e. g. , Administrative Record); Policies and procedures reflect those of the courts and its own prior decisions.

FWCA Application to Hydropower Project Licensing at FERC FWS’s Authority for Participation • The FPA grants the FWS specific authority to participate in the licensing process and to recommend license conditions • Some of our conditioning authority is mandatory

FWCA Application to Hydropower Project Licensing at FERC Federal Power Act Section 4(e) Mandatory Conditions for Federal lands Any license issued by the Commission must be consistent with the purpose for which such federal reservation was set aside and comply with conditions set forth by the Secretary of the Department responsible for managing the federal reservation.

FWCA Application to Hydropower Project Licensing at FERC Federal Power Act Section 10(a) Comprehensive Plans Any license issued by the Commission must be adapted to a comprehensive plan for. . . adequate protection, mitigation, and enhancement of fish and wildlife. . .

FWCA Application to Hydropower Project Licensing at FERC Federal Power Act Section 10(j) Fish and Wildlife Recommendations Each license issued must include conditions based on FWCA recommendations from FWS, NOAA-Fisheries, and state F&W agencies.

FWCA Application to Hydropower Project Licensing at FERC Federal Power Act Section 18 Mandatory Fishway Prescriptions The Commission shall require the construction, operation, and maintenance by a license at its own expense of such fishways as may be prescribed by the Secretary of the Interior or Commerce.

FWCA Application to Hydropower Project Licensing at FERC The FERC Licensing Process is Litigation! The FERC licensing process is an administrative proceeding intended to build a record for the Court of Appeals and to support FERC’s licensing decision.

FWCA Application to Hydropower Project Licensing at FERC FWS Task • Conduct an Independent Analysis consistent with our statutory mandates and role in the licensing process; • Make sure that the basis for that analysis (“substantial evidence”) is contained in the administrative record.

FWCA Application to Hydropower Project Licensing at FERC The FERC Licensing Process • 3 Different Licensing processes • • • Integrated Licensing Process (ILP) Traditional Licensing Process (TLP) Alternative Licensing Process (ALP) • ILP is the default licensing process

FWCA Report delivered to FERC through the Department Rehearing If necessary, Final or Modified FWCA Report delivered to FERC through the Department Court of Appeals Key comment opportunities to make study requests, propose mitigation, and influence the design, construction, operation, and maintenance of the project. Points in the licensing process where FWCA report is delivered.

FWCA Application to Hydropower Project Licensing at FERC Notice of Ready for Environmental Analysis (REA Notice) • Point in the licensing process where FWCA Report is submitted to FERC; • 60 day Comment Period; • Coordinated Departmental response signed by the Department;

FWCA Application to Hydropower Project Licensing at FERC FWS Opportunities to Inform the Licensing Process • It is up to the FWS to inform FERC of our issues and/or support for a project; • “Silence is Agreement” • If an issue is not on the record, it does not exist.

FWCA Application to Hydropower Project Licensing at FERC FWS Opportunities to Inform the Licensing Process • FWS participation will influence FERC’s decisions about: • • • Which issues to examine; Which studies to conduct; and Which environmental measures are ultimately included in the license.

Resources Frankie_Green @fws. gov National Hydropower Coordinator https//openei. org/wiki/RAPID/Hydropower https//openei. org/wiki/RAPID/Roadmap/7 -FD-o FERC website – LOTS https: //ferc. gov/legal/staff-reports/2017/hydropower -primer. pdf