D. FPA Section 4(e) Conditions for Protection of a Federal Reservation

If a project is located within a federal reservation such as a National Forest or tribal land[1] FPA Section 4(e) applies.  FPA Section 4(e) establishes two substantive requirements.  First, FERC must find the license will not interfere or be inconsistent with the original purposes of such reservation.”[2]  Second, the federal agency managing the reservation may require whatever conditions it finds are necessary for the reservation’s protection and use,[3] although such conditions may not expressly veto the license.[4]  FERC must incorporate these conditions into the license.[5]  FERC may reject or condition a license if it believes a condition exceeds the scope of FPA section 4(e).  In this event, FERC may issue the license under protest after which it may join in judicial review of that condition.  FERC, however, may not amend or delete the condition on its own authority.[6]

Any party to a license proceeding can initiate trial-type hearings on issues of material fact related to mandatory conditions or prescriptions recommended by agencies under FPA Section 4(e).  This process is discussed in the Integrated Licensing section below (Section 4.9).

An agency with Section 4(e) authority for a given project may prescribe any conditions necessary to protect the lands and waters of the reservation.  These conditions range from flow schedule to recreational improvements such as improved river access.  To understand the “original purposes of the reservation,” as defined by Section 4(e), you should review the original legislation that created the reservation as well as the plans and policies adopted by the federal agency for management of the reservation.  Meet with the agency to understand how its staff views its obligations in the licensing process. 

Early in the proceeding, you should identify the specific management requirements in the plans applicable to the project.  Analyze whether and how the license application and alternatives appear to be consistent with those requirements.  Some management requirements may be vague or general, so work to convince the agency to make interpretations of those requirements early in the process.

File a written request that the agency include you in its mailing list for the Section 4(e) conditions.  This should be done early in the proceeding and not later than when FERC publishes notice that a license application is complete.  You should insist on the ability to participate in any negotiations the agency undertakes with the licensee. 

Like FERC in its treatment of comprehensive plans, agencies with Section 4(e) authorities sometimes do not articulate the nexus between the conditions they adopt and the specific management requirements in applicable plans for the reservation.  In your comments on the preliminary or final Section 4(e) conditions, focus on those specific management requirements.  Articulate a clear and rational nexus between the conditions and requirements if the agency does not otherwise provide it.  Acknowledge any ambiguities and conflicts between the requirements, and explain how best to resolve such conflicts.

You should address your correspondence on Section 4(e) issues directly to the agency.  You should also file any such correspondence, including your written comments on the Section 4(e) conditions, with FERC.  Your standing to appeal such conditions, through rehearing or judicial review, depends on your timeliness and specificity in such comments.

It may be helpful to reach out to other constituencies who concentrate their work on public lands and have experience working with specific land managers. Request that members of Congress, State legislators, or County supervisors file letters urging protection and restoration of natural resource values.

[1]               A reservation is federal land which is withdrawn from public entry, such as a homesteading or mining claim.  For this purpose, it includes: National Forests managed by the Forest Service, National Wildlife Refuge managed by the FWS, Tribal reservations managed by DOI, other lands reserved by BLM and NPS.  A reservation is defined, for the purpose of Section 4(e), to exclude National Parks and Monuments.  This exclusion functions as a prohibition on any such development.  16 U.S.C. § 797(c).  Further, a project may not be licensed on any river, included or designated for inclusion in the National Wild and Scenic River System, if it would have a “direct and adverse effect on the values for which a river was designated.”  16 U.S.C. §§ 1278(a)-(b).

[2]               16 U.S.C. § 797(e).  See also Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 788 (1984) (Escondido Mutual); Keating v. FERC, 114 F.3d 1265, 1269 (D.C. Cir. 1997).

[3]               See Escondido Mutual, 466 U.S. at 777-778.

[4]               See id.

[5]               See Escondido Mutual, 466 U.S. at 776.

[6]               See id. at 781.  However, FERC has recently affirmed its authority to delete a Section 4(e) condition which relates to a project work not with a reservation.  See Upper Peninsula Power Company, 110 FERC ¶ 61,141 (2005), which holds that FERC is “not required to include in licenses conditions pertaining to reservations that are affected by a project, but contain no project works.  Nor may the [Agency] impose conditions on projects or portions of projects that are not located on reservations under its supervision.”