[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21629]


[[Page Unknown]]

[Federal Register: September 1, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 405

[Docket No. 940676-4176; I.D. 042194B]
RIN 0648-AG70; 1018-AC46

 

Prescription of Fishways Under Section 18 of the Federal Power 
Act

AGENCIES: Fish and Wildlife Service (FWS), Interior; and National 
Marine Fisheries Service (NMFS), National Oceanic and Atmospheric 
Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Department of the Interior (DOI) and the Department of 
Commerce (DOC) (Departments) are considering proposing a rule to 
harmonize and codify their existing practices for prescribing fishways 
under section 18 of the Federal Power Act (FPA). A rule on this subject 
would clarify the process by which the Departments prescribe fishways 
for non-Federal hydropower projects licensed by the Federal Energy 
Regulatory Commission (Commission). The Departments anticipate that a 
fishway prescription rule would provide procedural guidance to agency 
staff; increase consistency and predictability in the fishway 
prescription process; and foster understanding between the Departments, 
license applicants, and the Commission. A rule would also explain how 
the Departments obtain information from, and coordinate with, license 
applicants and licensees throughout the prescription process.

DATES: Written comments must be received on or before October 31, 1994.

ADDRESSES: Comments should be sent to the Chief, Division of Habitat 
Conservation (400 ARLSQ), U.S. Fish and Wildlife Service, 1849 C 
Street, NW., Washington, DC 20240; or to the Director, Office of 
Habitat Protection, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3282.

FOR FURTHER INFORMATION CONTACT:
Estyn R. Mead, U.S. Fish and Wildlife Service, 703-358-2183 or Stephen 
M. Waste, National Marine Fisheries, Services, 301-713-2325.

SUPPLEMENTARY INFORMATION: The Departments are inviting comments on the 
merits of proposing a rule to harmonize and codify their existing 
practices for prescribing fishways under section 18 of the Federal 
Power Act (FPA) (hereinafter referred to as Section 18). The 
Departments are not proposing new regulations at this time, rather they 
invite comments on whether the codification of current Departmental 
practice into regulations would be beneficial. To facilitate comments 
on the need for regulations, this notice provides background on the 
role of the Departments under Section 18, the Departments' reasons for 
believing rulemaking might be helpful, and the Departments' approach to 
key procedural practices fundamental to the fishway prescription 
process. The Departments seek comments on all these issues.

I. Background

    The Department of the Interior, acting through the Fish and 
Wildlife Service (FWS), and the Department of Commerce, acting through 
the National Marine Fisheries Service (NMFS), are the Federal agencies 
primarily responsible for the conservation and management of the 
Nation's fish and wildlife resources. The FWS has broad delegated 
responsibilities to protect and enhance fish and wildlife and related 
public resources and interests under authorities granted by the Fish 
and Wildlife Act of 1956 (FWA); the Fish and Wildlife Coordination Act 
(FWCA); the National Environmental Policy Act (NEPA); the Migratory 
Bird Treaty Act (MBTA); and the Endangered Species Act of 1973 (ESA). 
The NMFS is entrusted with Federal jurisdiction over marine, estuarine, 
and anadromous fishery resources under various laws, including the 
FWCA; the NEPA; the ESA; and the Magnuson Fishery Conservation and 
Management Act (MFCMA).
    Both FWS and NMFS have special expertise and responsibility for 
fishery resources which are particularly germane to the Commission's 
hydropower licensing decisions. Prior to licensing a hydropower 
project, the Commission has an affirmative duty to consult with FWS and 
NMFS pursuant to the FWCA and the FPA to determine measures necessary 
to protect, mitigate damages to, and enhance fishery resources 
including related spawning grounds and habitat. FWS and NMFS recommend 
to the Commission license conditions for fish protection, mitigation, 
and enhancement and prescribe mandatory conditions for the 
construction, operation, and maintenance of fishways. Together, FWS and 
NMFS share a mandate to conserve, protect, enhance, and restore fish 
populations and habitat for commercial, recreational, and tribal 
fisheries, both national and international.

A. Roles of the Departments Under Section 18

    Section 18 of the FPA expressly authorizes the Departments to issue 
fishway prescriptions. Section 18 states that the licenses issued by 
the Commission must require fishways when they have been prescribed by 
the Departments. After a thorough review of Section 18 and its history, 
the Commission stated in Lynchburg Hydro Associates, 39 FERC  61,079, 
at 61,218 (1987) that:

    We have no discretionary authority in this regard; fishways must 
be required when properly prescribed by the Secretaries.

This decision recognized the mandatory nature of the Departments' 
authority to prescribe fishways under Section 18. The FWS has developed 
all fishway prescriptions issued by the DOI, and the NMFS has developed 
the DOC's prescriptions (FWS and NMFS are henceforth referred to as 
``agencies'').
    The Departments' fishway prescriptions include those elements of 
fishway construction, operation, and maintenance necessary to ensure 
effective fish passage over the term of a hydropower project license. A 
fishway facilitates the unimpeded movement of fish past a hydropower 
project, whether upstream or downstream, for purposes such as spawning, 
rearing, feeding, dispersing, and the seasonal utilization of habitat. 
Consequently, fishway prescriptions are often unique, matching the 
project's site-specific characteristics with the biological 
requirements of the fishery resources involved. Fishway prescriptions 
take the form of general directives, specific standards, or design 
criteria or plans. Fishway prescriptions address such issues as site 
access, inspection and compliance, modification, monitoring, and 
evaluation. Additional considerations include design factors resulting 
from fishway studies regarding physical structures, and project 
operations and measures related to physical structures.

B. Need for Rulemaking

    There are two primary reasons why the Departments are considering 
proposing a rule for the prescription of fishways. First, Congressional 
debate during the enactment of the Comprehensive Energy Policy Act of 
1992 (Pub. L. No. 102-486) indicated that a rule might be appropriate 
to codify how the Departments' authority for prescribing fishways is 
exercised.
    Secondly, while the Commission has adopted detailed regulations 
governing the hydropower licensing process, there is no codification of 
the Departments' existing practices regarding the prescription of 
fishways. At present, the means and measures by which the Departments 
develop fishway prescriptions are sometimes not fully understood by 
prospective license applicants. A rule codifying present agency 
practices for formulating fishway prescriptions would be helpful in 
this regard.

II. The Fishway Prescription Process

    As presently practiced, the fishway prescription process is a 
coordinated, interactive effort between the agencies and the license 
applicant to fully address the biological, engineering, and design 
questions regarding the movement of fish upstream and downstream past a 
hydropower project. This process includes cooperative interaction with 
fish passage specialists; Indian tribes; Federal agencies, including 
the Bureau of Indian Affairs; state fishery management agencies; and 
other interested parties. If necessary, fishway studies are conducted 
by the applicant, in consultation with the agencies, to determine 
whether or not fishways are needed. Where fishways are needed, license 
applicants conduct studies, in consultation with the agencies, to 
develop site-specific information necessary to facilitate project and 
fishway designs that provide for the effective passage of fish, and to 
identify the structural and operational elements required to meet this 
goal. The agencies provide technical review and comment on the license 
applicant's fishway studies and proposed fishway design. At the end of 
this interactive effort, the agencies formulate their fishway 
prescriptions.
    If proposed, the rule would codify this process into a set of 
sequential steps that would address the coordination, design, and 
conduct of fishway studies; to review and evaluation of completed 
fishway studies; the formulation of fishway prescriptions; and the 
reservation of Section 18 authority to prescribe and/or modify 
fishways. This process would occur concurrently with the Commission's 
pre- and post-application consultation processes.

III. Required Determinations

    This notice has been determined to be not significant for purposes 
of Executive Order (E.O.) 12866.
    After the Departments consider the comments received on this 
advanced notice, they will decide whether to develop a proposed rule. 
Should the Departments proceed with rulemaking, they would examine 
impacts of a proposed rule on Federal-state relationships pursuant to 
E.O. 12612 (Federalism), the economic impacts on small entities 
pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), and any 
significant impacts on the quality of the human environment pursuant to 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.). In 
addition, the Departments would address all other applicable law.

IV. Comment Procedure

    The Departments invite interested persons to submit written 
comments and suggestions on all aspects of the fishways prescription 
process in order to clarify the current process. Comments from license 
applicants, constituent groups, and other interested parties stating 
their views on how the fishway prescription process interfaces with the 
current Commission licensing process are of particular interest.

    'Dated: August 18, 1994.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
Interior.

    Dated: August 9, 1994.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration.
[FR Doc. 94-21629 Filed 8-31-94; 8:45 am]
BILLING CODE 3510-22-M; 4310-55-M