C. FPA Section 10(j) Conditions for the Protection, Mitigation, and Enhancement of Fish and Wildlife Resources

Unlike FPA section 10(a), which balances energy generation and all other beneficial uses of the affected river, FPA section 10(j) requires that a license “adequately and equitably protect, mitigate damages to, and enhance fish and wildlife (including related spawning grounds and habitat) affected by the development, operation, and management of the project….”[1]  NMFS, FWS, or a state fish and wildlife department may recommend such conditions.  If timely submitted,[2] all such conditions must be included in the license, unless FERC makes written findings that: (1) a given condition is inconsistent with the purposes of the FPA Part I; and (2) the alternative condition adopted by FERC provides the protection, mitigation, and enhancement required by FPA section 10(j)(1).[3]

Because Section 10(j) submittals are recommendations, FERC may reject many on the basis of the above findings.   

To increase the chances of acceptance, you should encourage each resource agency to analyze the consistency of its Section 10(j) conditions with the purposes of the FPA, specifically electricity generation.  Its submittal should state why it believes the conditions are consistent.  Typically, when FERC finds that a condition is inconsistent, it relies on the adverse impacts on generation, capacity, or revenues.  This is often simplified by stating that the “project is inconsistent with a comprehensive plan for development.”   For that reason, as discussed in Section 3.2.2(B), you should assure that the agencies have access to a model which predicts such impacts and demonstrate that, in relative terms, the costs are not as great.  For instance, while the costs of a mitigation measure may appear high, they may be modest as a fraction of the net project revenues or when distributed among ratepayers.   You may prepare such a model if you have the means.  The HRC has developed such models and may be willing to share them and assist participants in finding consultants who can help.

Establish alliances with organizations that would benefit from acceptance of Section 10(j) recommendations.  Work with hunting and fishing clubs and similar interests to build support for fish and wildlife measures, on the ground of local financial benefits.  Use the media to share your vision for the restoration of natural resource values.

[1]               16 U.S.C. § 803(j)(1).

[2]               FPA Section 10(j)(1) conditions must be submitted within 60 days after the Notice of Readiness for Environmental Analysis.  See Section 4.7.2. below.  Any condition filed after that deadline will be treated as a Section 10(a) recommendation, not entitled to deference.  See 18 C.F.R. 4.34(b).

[3]               16 U.S.C. § 803(j)(2)(A)-(B).