Federal agencies including USFS, FWS, and NMFS currently do not have any procedure for administrative appeal or rehearing of the mandatory conditions they respectively issue. Thus, if a party objects to such a condition when final, it may not obtain rehearing directly from the prescribing agency. While it may include the objection in a rehearing request before FERC, no relief may be granted, because FERC does not have jurisdiction to hear the objection absent the consent of the prescribing agency. Thus, the objecting party is limited to judicial review of the mandatory condition prescribed by an agency other than FERC. As of publication of this Toolkit edition, DOI has proposed to codify the MCRP and add an appeal procedure for its FPA section 4(e) or 18 conditions, ¹ NMFS has proposed to codify the MRCP and not establish appeal procedures, ² and the FS recently rescinded its appeal procedures.³

In turn, each state has its own written procedures for water quality certification for hydropower and other projects subject to CWA section 401(a). Such procedures typically include some form of administrative hearing, appeal, or rehearing of a certification. Compliance with those procedures is a precondition to any judicial review in state court.

3.2.5 Rehearing by FERC

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3.2.7 Judicial Review