In response to the Ready For Environmental Assessment (REA) Notice, the FWS, NMFS, or a state department of fish and wildlife may submit recommended conditions under FPA section 10(j) for the protection, mitigation, and enhancement of fish and wildlife resources affected by the project.1 A submittal must include the management objectives, as well as the evidentiary and legal basis for such conditions, and it must be filed by the deadline set in the REA Notice. Even if it would address the impacts differently on its own initiative, FERC must defer to these recommendations unless it makes an affirmative finding of inconsistency with the FPA.
After requesting any needed clarification,2 OEP will make a preliminary determination regarding consistency of each recommendation with the FPA or other applicable law. If the latter, the finding will include: (1) an explanation why OEP believes the recommendation is inconsistent with the FPA or other applicable law and (2) an explanation how other measures which OEP proposes in the environmental document will adequately and equitably protect, mitigate, and enhance affected fish and wildlife resources.3
Any party may comment on this determination within the comment period established for the EA or draft environmental document.4 The agency or tribe that submitted the contested recommendation may also request a meeting to resolve the dispute, to be held within 90 days of the date when OEP issues the preliminary determination of inconsistency.5 OEP will provide public notice of the meeting and will prepare a meeting summary thereafter.6 OEP and the agency must make a good faith effort to resolve the dispute, and OEP specifically must give “due weight” to the expertise and authority of the agency.7 This process ends when FERC issues its licensing order.8 If FERC does not adopt a Section 10(j) recommendation, the order must include findings required by FPA section 10(j)(2), as discussed in Section 2.3.3(C).9
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See 18 C.F.R. § 5.26(a).
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See 18 C.F.R. § 5.26(b).
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See id.
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See 18 C.F.R. § 5.26(c).
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See 18 C.F.R. § 5.26(c)-(d).
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See 18 C.F.R. § 5.26(d).
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18 C.F.R. 5.25(d).
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See 18 C.F.R. § 5.26(e).
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See 18 C.F.R. § 5.26(e).
