E. FPA Section 18 Fishway Prescription

Under FPA section 18, FWS or NMFS may prescribe a facility for fish passage (such as a fish ladder or a trapping site), operation and maintenance of the facility, and any other conditions necessary to ensure effective passage.[1]  A Section 18 prescription applies to upstream or downstream passage and diadromous or riverine fish and aquatic species such as eels and mussels.  The agency may also reserve its authority to adopt or amend a prescription after license issuance.[2]  This authority may not directly address the impact of fish entrainment unrelated to passage facility, since that impact is instead within the scope of FPA section 10(j) or (a).[3]  A Section 18 prescription may address entrainment indirectly by trying to maximize the efficiency and safety of a downstream fishway.  Further, the agency may not use this authority to veto the license in the event that passage is infeasible.

As with FPA section 4(e), FERC must incorporate a Section 18 prescription timely submitted by FWS or NMFS.  If it finds that the condition exceeds the permissible scope (e.g., by addressing fish entrainment directly), it may refuse to issue the license, or it may issue the license “under protest” with the objectionable condition subject to judicial review.[4]  Also, as with FPA Section 4(e), 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 18.  This process is discussed in the Integrated Licensing section below (Section 4.

Work closely with FWS/NMFS in the development of their Section 18 prescriptions.  FERC’s ex parte rule does not apply to such discussions.  See Section 3.2.2(F).

Early in the proceeding, make a written request that FWS/NMFS add you to its mailing lists.  Ask to be included in any negotiations it undertakes with the licensee.

Review any management plan relevant to the prescription, whether adopted by FWS/NMFS or the State fish and game department and confirm that the plan is filed with FERC.  If it is not, ask the agency to do so.  Identify each fish species subject to the plan and any specific management requirement that may apply to the Section 18 prescription. 

File written comments on the draft prescription with the prescribing agency and FERC.  Although FWS/NMFS may establish a deadline for such comment independent of FERC’s schedule, the draft prescription is usually released within 60 days of the Notice of Readiness for Environmental Analysis.  Ask that FWS/NMFS include in their prescription a specific nexus between the prescription and any relevant management plan and, more specifically, anticipated benefits of the proposed fish passage. 

Work with other constituencies such as angling groups, tribes, or commercial fishermen.  Undertake historical research to describe the condition of the river and its fishery.  This information can be helpful in identifying goals for fish restoration or simply proving the geographic range of a given species.

Invite reporters or political decision-makers out to the river during fish migration or spawning season to help them understand your proposed restoration goals.  Have a stock of current or historic photos to use in media or lobbying.

[1]               16 U.S.C. § 811.

[2]               See Wisconsin Public Service v. FERC, 32 F.3d 1165 (7th Cir. 1994).  To date, NMFS and FWS have not exercised their reserved authority to reopen a license and prescribe a fishway following relicensing.

[3]               See, e.g., City of New Martinsville v. FERC, 322 U.S. App. D.C. 169 (1996).

[4]               See American Rivers II, 201 F.3d 1186, 1210 (“Where the Commission disagrees with the scope of a fishway prescription, it may withhold a license altogether or voice its concerns in the court of appeals, but at the administrative stages, ‘it is not the Commission’s role to judge the validity of [the Secretary’s] position-substantially or procedurally.’”).