[Federal Register Volume 65, Number 247 (Friday, December 22, 2000)]
[Notices]
[Pages 80898-80904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32723]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 001215356-0356-01 and I.D. 100500A]
RIN 1018-AH42


Notice of Proposed Interagency Policy on the Prescription of 
Fishways Under Section 18 of the Federal Power Act

AGENCIES: U.S. Fish and Wildlife Service, Interior, and National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 
Commerce.

ACTION: Notice of proposed policy.

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SUMMARY: This notice invites public comment on proposed internal policy 
for the U.S. Fish and Wildlife Service and National Marine Fisheries 
Service (the Services) regarding the prescription of fishways pursuant 
to section 18 of the Federal Power Act for non-Federal hydropower 
projects licensed by the Federal Energy Regulatory Commission (FERC). 
The proposed policy is intended to set forth the definition of fishways 
in accordance with the 1992 National Energy Policy Act and the 
procedures for the prescription of fishways. The policy does not 
introduce new procedures but standardizes current practices and 
existing procedures for providing fishway prescriptions.

DATES: Written comments must be received on or before February 20, 
2001.

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

FOR FURTHER INFORMATION CONTACT: Dr. Benjamin N. Tuggle, Chief, 
Division of Federal Program Activities, telephone: 703/358-2161, or Dr. 
Stephen M. Waste, Office of Habitat Conservation, National Marine 
Fisheries Service, telephone: 301/713-2325.

SUPPLEMENTARY INFORMATION:

Background

    The Department of the Interior, acting through the Fish and 
Wildlife Service (FWS), and the Department of Commerce, National 
Oceanic and Atmospheric Administration (NOAA), acting through the 
National Marine Fisheries Service (NMFS), are the Federal Departments 
primarily responsible for the conservation and management of the 
Nation's fish and wildlife resources. The FWS has broad 
responsibilities to conserve, protect, and enhance fish, wildlife, and 
their habitats under authorities granted by the Fish and Wildlife Act 
of 1956 (FWA) (16 U.S.C. 742a-742j, not including 742 d-1; 70 
Stat.1119); the Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 
661 et seq.); the Federal Power Act (FPA) (16 U.S.C. 791a et seq.); and 
the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.). NMFS has 
Federal responsibilities for marine, estuarine, and anadromous fish 
resources pursuant to the FPA, the ESA, and the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 
U.S.C. 1801 et seq.), and Reorganization Plan Number 4 of 1970.
    Section 18 of the FPA (16 U.S.C. 811) expressly grants to the 
Departments of Commerce and Interior (Departments) exclusive authority 
to prescribe fishways. Section 18 states that FERC must require 
construction, maintenance, and operation by a licensee at its own 
expense of such fishways as may be prescribed by the Secretary of 
Commerce or the Secretary of the Interior. Fishways prescribed under 
section 18 of the FPA by the Departments are mandatory upon FERC for 
inclusion in license conditions. Within the Department of the Interior, 
the authority to prescribe fishways is delegated from the Secretary of 
the Interior to the FWS Regional Directors. Within the Department of 
Commerce, the authority to prescribe fishways is delegated to the NMFS 
Regional Administrators. Therefore, the FWS develops all fishway 
prescriptions issued by the Department of the Interior under section 
18, and NMFS develops all of the Department of Commerce's fishway 
prescriptions.

Discussion

    The National Energy Policy Act of 1992, section 1701(b), rescinded 
FERC's definition of fishways. Through this proposed policy, the 
Services take this opportunity to define fishways. This proposed policy 
also sets forth the general agency practice for developing fishway 
prescriptions, and encourages license participants to anticipate fish 
passage needs and the Services' procedures. This policy does not 
introduce new procedures but standardizes current practices to ensure a 
consistent and effective process. The policy does not expand the 
authorities of the Departments or the Services beyond those that 
currently exist and does not place additional requirements on anyone 
outside the Departments beyond those that already exist in the FPA and 
FERC's regulations under the FPA at 18 CFR, Chapter I.
    Additionally, the courts have recently addressed several section 18 
issues that affect the Services' implementation of the fishway 
prescription process. In following Escondido Mutual Water Co., et al. 
v. La Jolla Band of Mission Indians et al. 466 U.S. 765 (1984), the 
courts have continued to hold that the exercise by the Secretaries' 
authority under section 18 is mandatory and requires inclusion of 
fishway prescriptions in any license issued by FERC. (Bangor-
Hydroelectric Co., Inc. v. FERC, 78 F.3d 659 (D.C.Cir. 1996); American 
Rivers, Inc. v. FERC, 129 F.3d 99 (2nd Cir. 1997); American Rivers v. 
FERC, 187 F.3d 1007 [9th Cir. 1999] ). The Services' fishway 
prescriptions must be supported by substantial evidence in the 
administrative record before FERC and be reasonably related to the 
Services' fish passage goals. (Bangor-Hydroelectric Co., Inc. v. FERC, 
78 F.3d 659 (D.C.Cir. 1996).)
    On September 1, 1994, NMFS and FWS published an ``Advanced Notice 
of Proposed Rulemaking (ANPR) for Prescribing Fishways Under section 18 
of the Federal Power Act'' in the

[[Page 80899]]

Federal Register (59 FR 45255). Comments were received from natural 
resource and hydroelectric interests. The comments were supportive of a 
rule and provided suggestions for the proposed rule. Events subsequent 
to the ANPR, including the Bangor-Hydroelectric Co.litigation and court 
decision, contributed to the delay in further development and issuance 
of the ANPR and changed our course of action to policy issuance. The 
Departments have elected to proceed with issuance of a ``Notice of 
Proposed Interagency Policy on the Prescription of Fishways Under 
Section 18 of the Federal Power Act.'' This proposed policy meets the 
same objectives described in the 1994 ANPR.
    The proposed policy does not set forth new process or requirements. 
The fishway prescription process outlined in the proposed policy 
already occurs during FERC's existing licensing process and is included 
in FERC's current regulations. The proposed policy is a means to 
provide guidance to agency staff and ensure a consistent and effective 
fishway prescription process. The proposed policy will also help 
facilitate the consultative efforts between the Services, applicant or 
licensee, and other interested parties in the fishway prescription 
development process and promote understanding between agencies, license 
applicants, FERC, and the public of the process used to prescribe 
fishways.
    On May 26, 2000, the Departments issued a Federal Register notice 
(65 FR 34151) requesting public comment on establishing a review 
process for mandatory conditions including section 18 fishway 
prescriptions. Such a review process may provide an additional and more 
formal opportunity for licensees and others to provide input on the 
Departments' mandatory conditions. When a review process is developed, 
it will be incorporated into this proposed interagency section 18 
policy.

Applicability

    The proposed policy applies to all the Services' activities related 
to the prescription of new and/or modification of existing fishways at 
non-Federal hydroelectric projects licensed by FERC pursuant to the 
Federal Power Act.

Record of Compliance

    We have prepared a Record of Compliance documenting that this 
action complies with the various statutory, Executive Order, and 
Departments of the Interior and Commerce requirements that are 
applicable to rulemakings. A copy is available upon request (see 
ADDRESSES).
    FERC issues licenses for new, previously unlicensed hydropower 
projects and issues new licenses for about 1,000 previously licensed 
non-Federal hydropower projects. Hydropower projects are issued 
licenses for a period of up to 50 years and then can be re-licensed in 
order to continue operating. All of the projects receiving licenses are 
subject to the Services' section 18 mandatory authority to prescribe 
fishways. The Services determine the need for fishways for hydropower 
projects on a case-by-case basis. In addition, the Services are 
required to evaluate fish passage for these hydropower projects based 
on current environmental laws and regulations. Therefore, it is likely 
that the Services may prescribe fishways for a fair number of these 
hydropower projects.
    By establishing this proposed policy, the Services set forth 
existing procedures for providing fishway prescriptions to ensure a 
consistent and effective process. The policy does not introduce new 
procedures but standardizes current practices and provides a definition 
of fishway. Therefore, the numbers of fishways prescribed for 
hydropower projects will probably not change significantly with this 
proposed policy. The proposed policy would help to facilitate the 
consultative efforts among the Services, applicant or licensee, and 
other interested parties in the fishway prescription development 
process and promote understanding among agencies, license applicants, 
FERC, and the public of the process used to prescribe fishways.
    The proposed policy was reviewed under Executive Order 12866. As 
discussed earlier, this proposed policy is a statement of current 
practice and, therefore, does not contain any additional requirements 
concerning the government, public, or any other party. Accordingly, 
this proposed policy will not have a significant economic effect on a 
substantial number of small entities as defined under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). Similarly, this policy is not a 
major rule under 5 U.S.C. 804(2), the Small Business Regulatory 
Enforcement Fairness Act.
    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.), this proposed policy does not affect small governments, nor 
does it require any additional management responsibilities. Therefore, 
the proposed policy will not result in any significant additional 
expenditures by entities that participate in the fishway prescription 
process. This proposed policy will not produce a Federal mandate of 
$100 million or greater in any year, that is, it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act.
    In accordance with Executive Order 12630, this proposed policy does 
not have significant takings' implications. This proposed policy will 
not result in takings since it generally describes the current 
procedures used in the fishway prescription process for all involved 
parties.
    In accordance with Executive Order 13132, this proposed policy does 
not have significant Federalism effects. This proposed policy will not 
affect other governments since no intrusion on state policy or 
administration is expected; roles or responsibilities of Federal or 
state governments will not change; and fiscal capacity will not be 
substantially directly affected. Therefore, the proposed policy does 
not have significant effects or implications on Federalism.
    In accordance with Executive Order 12988, the proposed policy does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. This proposed policy does not 
require any information collection for which the Office of Management 
and Budget approval is required under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.). We have analyzed this proposed policy in 
accordance with the criteria of the National Environmental Policy Act 
(NEPA) and the Department of the Interior Manual (318 DM 2.2(g) and 
6.3(D)). This proposed policy does not constitute a major Federal 
action significantly affecting the quality of the human environment. An 
environmental impact statement or assessment is not required. We have 
determined that the issuance of the proposed policy is categorically 
excluded under the Department of the Interior's NEPA procedures in 516 
DM 2, Appendix 1.10. NOAA has determined that the issuance of this 
proposed policy qualifies for a categorical exclusion as defined by 
NOAA 216-6 Administrative Order, Environmental Review Procedure.
    We have analyzed this proposed policy in accordance with section 7 
consultation of the ESA. We have determined that issuance of this 
proposed policy will not affect species listed as threatened or 
endangered under the ESA, and, therefore, a section 7 consultation on 
this proposed policy is not required.
    We have analyzed this proposed policy in accordance with section 
305(b) of the Magnuson-Stevens Act. We have

[[Page 80900]]

determined that issuance of this proposed policy may not adversely 
affect the essential fish habitat (EFH) of federally managed species, 
and, therefore, an essential fish habitat consultation on this proposed 
policy is not required. If individual fishways prescriptions for 
specific projects may adversely affect EFH, then FERC would be required 
to conduct an EFH consultation with NMFS.
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and with the Department of the Interior 
Manual (512 DM 2), this proposed policy does not directly affect Tribal 
resources. We have evaluated effects on federally recognized Indian 
tribes and have determined that there are no potential effects. The 
proposed policy does not introduce new procedures but standardizes 
existing procedures for consultation concerning the fishway 
prescription process. The proposed policy will further facilitate 
consultative efforts between the Services and the Tribes and promote 
understanding of the process used to prescribe fishways.

PROPOSED INTERAGENCY POLICY FOR THE PRESCRIPTION OF FISHWAYS

I. Introduction

    The purpose of this policy is to publish the Services' definition 
of fishway and procedures for the prescription of fishways by the U.S. 
Fish and Wildlife Service and National Marine Fisheries Service (the 
Services), pursuant to section 18 of the Federal Power Act (FPA) for 
non-Federal hydropower projects licensed by the Federal Energy 
Regulatory Commission (FERC).
    Hydropower projects including their associated dams divide a river 
system into isolated segments, impede or block fish movement, and kill 
or injure fish. The viability and mobility of fish species that would 
otherwise move to and between different habitats within the river basin 
may diminish substantially, if not completely, due to the dams. 
Fishways help mitigate the impact of hydropower dams on aquatic 
ecosystems by providing fish passage. Fishways on dams serve a variety 
of public purposes and resource goals including, but not limited to, 
the safe and timely physical passage of fish past the project; the 
improvement/augmentation of existing populations within a basin; the 
reunification of fragmented populations; and the reintroduction/ 
reestablishment of viable fish runs in a basin or watershed. In 
addition, providing fish passage may be necessary to protect tribal 
resources 61 FR 58211 (1996) and the exercise of American Indian tribal 
rights.
    Fishways are prescribed by the Services to ensure the safe, timely, 
and effective passage of fish at non-Federal hydropower projects. 
Fishways facilitate the effective movement of fish past a hydropower 
project and provide one or more ways for fish to move, upstream or 
downstream, for such purposes as spawning, rearing, feeding, 
dispersing, and the seasonal use of habitat.
    The Services will determine whether or not fishways are required 
for specific hydropower projects. Fishway prescriptions are designed to 
support implementation of fisheries management and resource protection 
objectives. Often the objectives will ensure that hydropower projects 
meet the goals of restoring, maintaining, and enhancing fish 
populations. Fishway prescriptions address fish passage goals 
identified in national, regional, or watershed level planning documents 
or those provided by the Services on a site-specific basis. In 
determining the need for fishways, the Services should coordinate with 
the states, other Federal agencies, Tribes, and other interested 
parties in the development of basin-wide fish restoration plans and 
goals.
    Accomplishing effective fish passage is in the public interest and 
is an appropriate project purpose. As such, this purpose should be an 
integral component of project design and operation, whenever possible 
and practical, for both existing and new projects. This purpose is best 
met when fishway plans are integrated into early project planning and 
design and continuously achieved through the term of the license. 
Accomplishing this purpose requires that both or either Services with 
statutory fishway responsibilities are involved in both pre- and post-
licensing related activities. This involvement is traditionally through 
consultation with the applicant or licensee and communication with 
FERC.
    After licensing, the Services work with the licensee on fishway-
related planning, modeling, and design prior to construction, 
operation, and maintenance. After passage facilities are complete and 
operational, facility evaluation, monitoring, and inspection should be 
initiated by the applicant or licensee to the satisfaction of the 
Services to ensure that the fish passage facility is performing as 
intended. Each of these activities is important and can influence 
whether or not effective fish passage is being, or will be, 
accomplished.

II. Definition of Fishway

    In order to ensure the consistent implementation of the Services' 
fishway prescriptions, it is necessary to understand the elements of a 
fishway. Congress provided guidance as to what constitutes a fishway in 
the National Energy Policy Act (NEPA) of 1992 (Pub.L. 102-486). Section 
1701(b) of the Act states:
    ... the items which may constitute a ``fishway'' under section 
18 for the safe and timely upstream and downstream passage of fish 
shall be limited to physical structures, facilities, and devices 
necessary to maintain all life stages of such fish, and project 
operations and measures related to such structures, facilities, or 
devices which are necessary to ensure the effectiveness of such 
structures, facilities, or devices for such fish.
    The fundamental purpose of a fishway is to provide for the movement 
of fish past a barrier. Fishways are intended to provide safe, timely, 
and effective access to and from habitat for such purposes as spawning, 
rearing, feeding, growth to maturity, dispersion, migration, seasonal 
use of habitat and connectivity within the aquatic ecosystem, but not 
for habitat protection. To be successful, fishways must be constructed, 
operated, and maintained considering the biological requirements of 
fish moving upstream and downstream and the manner in which these 
movements are influenced by the structural and nonstructural elements 
of a hydropower project. A variety or combination of facilities, 
structures, devices, measures, and operations are often necessary in 
order for a fishway to provide effective fish passage.
    The fishway definition in this policy provides clarification of 
Congress' guidance on the elements of a fishway. The Services define 
fishway as:
    Any facility, structure, device, measure, or project operation, 
or any combination thereof, necessary for safe, timely, and 
effective movement of fish, regardless of life stage, whether 
upstream or downstream, through, over, or around a reach affected by 
a hydropower project, including, but not limited to: (1) fish 
ladders, locks, lifts, bypasses, barriers, and screens; (2) 
breaches, notches, spillways, gates, tunnels, flumes, pipes, or 
other conveyances, and channel modifications; and (3) water spill, 
flow, temperature, and level; (4) operating schedules; and (5) any 
other facilities, structures, devices, measures, or project 
operations necessary to attract, guide, pass, repel, exclude, 
transport, or trap fish, or provide information-by monitoring, 
modeling, evaluating, and studying, to ensure safe, timely and 
effective passage of fish.
    Facility, structure, device, operation, and measure are not the 
same (see III.

[[Page 80901]]

 Other Definitions Used in the Policy). By way of example, and not 
limitation, a fishway may include: (1) facilities that are often used 
for conveying, bypassing, collecting (as in a gallery), counting, 
trapping, and transporting fish; (2) structures, such as fish ladders, 
screens, barriers, and spillways used for conveying, guiding, or 
excluding fish, or the super structure in a fish-lift that provides for 
physical support; and (3) devices, mechanical or electronic, such as 
pumps or valves of an attraction flow system, the gate and hoist and 
pulley of a fish-lift, or a vehicle for transporting fish, that are 
often necessary to run the system, and thus, part of a fishway.
    Project operations and measures are often necessary to ensure the 
effectiveness of the facilities, structures, devices, and other 
operations. They may include the timing of when a power generation unit 
may be on or off (first unit on, last off) during the migration period 
to affect the routing of migrating fish. Also, as a measure to ensure 
that the structures, facilities, and devices will be designed and 
located to pass fish effectively, conditions requiring planning 
(including operations and maintenance), modeling, designing, and 
consultation can be included. In particular, hydraulic modeling of 
project operations can be effective in designing and locating 
structures, facilities, and devices and in adjusting the effect of 
project operations on fish routing and movement. The Services may 
include measures to ensure that flows for attraction and conveyance are 
adequate for fish passage.
    To ensure that the structures, facilities, and devices will operate 
in synchrony with fish movement, the Services may include schedules for 
initial and/or seasonal fish-passage operations. The Services may also 
include mechanisms for scheduling any necessary seasonal changes, 
subject to an express requirement for the notification to, and approval 
by, the Services. In regard to these operations, a prescription may 
specify a maximum and minimum river flow at which upstream and 
downstream passage should be provided by the applicant or licensee. 
Evaluations of fish passage effectiveness and inspection may be 
included to ensure that passage measures perform in a manner consistent 
with the intent and specific criteria stipulated by the Services in 
their prescriptions.

III. Other Definitions Used in the Policy

    For the purpose of this policy:
    Departments means the Department of the Interior and the Department 
of Commerce.FERC means the Federal Energy Regulatory Commission.
    Devicemeans a piece of equipment or a mechanism designed to serve a 
particular purpose or perform a particular function.
    Facility means a specific combination of structures, devices, 
operations, and/or measures designed to work together to perform a 
function.
    Fish means fishes, mollusks, crustaceans, and all other forms of 
freshwater, estuarine, and marine animal life other than mammals and 
birds.
    Hydropower project means a complete unit of development, consisting 
of a power house, all water conduits, all dams and appurtenant works 
and structures (including navigation structures) that are part of a 
said unit, and all storage, diverting, or forebay reservoirs directly 
connected therewith, the primary line or lines transmitting power 
therefrom to the point of junction with the distribution system or with 
the interconnected primary transmission system, all miscellaneous 
structures used and useful in connection with said unit or any part 
thereof, and all water-rights, rights-of-way, ditches, dams, 
reservoirs, lands, or interest in lands the use and occupancy of which 
are necessary or appropriate in the maintenance and operation of such 
unit - as defined in the FPA.
    Measure means an amount, allotment, capacity, evaluation, 
intensity, measurement, quality, schedule, size, study, and action 
calculated to achieve an end.
    Migratory means demonstrating any mass movement from one habitat to 
another with characteristic regularity in time or according to stages 
of life history.
    Operation means a method or manner of functioning or performing.
    Reach means a section or portion of a stream length.
    Riverine fish means fish that live in freshwater systems, such as 
rivers and streams, that do not spend time at sea.
    Services means the U.S. Fish and Wildlife Service within the 
Department of the Interior, and the National Marine Fisheries Service 
within the Department of Commerce.
    Structure means a constructed physical feature.

IV. The Fishway Prescription Process

A. Scoping, Consultation, and Studies

    The policy states in general terms the Services' fishway 
prescription process, which may occur concurrently with FERC's 
licensing or during the license term. The fishway prescription process 
described in this document is generally applicable to both the 
traditional and the alternative licensing processes at 18 CFR, Chapter 
I. Because the FERC record is developed differently in these processes, 
the prescription process may be adjusted to reflect those differences. 
The fishway prescription process is a consultative, iterative effort 
among the Services, applicant or licensee, and other interested parties 
to adequately address resource management, biological, engineering, and 
design factors related to accomplishing effective fish passage at the 
project.
    The Services typically begin the fishway prescription process by 
scoping the issues related to fish passage for the individual license 
proceeding. While each project is unique, some initial considerations 
for the Services include (1) the types of fish occurring currently or 
historically in the vicinity of the project or proposed project; (2) 
the biological status of the species under consideration; (3) the 
effect of the project, or proposed project, on fish and their habitat; 
(4) the status of the habitat upstream of the project; (5) the 
possibility for restoration of fish runs; (6) the need for fishways; 
and (7) what types of fishways are needed. As part of the scoping 
process, the Services evaluate the information available to answer 
these questions.
    A critical component of the Services' fishway prescription process 
is the information available to the Services and existing in the FERC 
record. The information utilized by the Services comes from a variety 
of sources, including historical accounts, records, surveys, and other 
information; Federal, state, and tribal management plans; information 
obtained from scoping, consultation and coordination, project-specific 
surveys and studies, and the license application, as well as 
information already in the Services' possession. One of the Services' 
important objectives, as a participant in the licensing or amendment 
process, is to identify whether fish passage may be impacted by the 
project, to identify project features and operations that may impact 
fish passage, and to identify the means and measures to mitigate these 
impacts. Based upon the information available, the Services will 
identify resource management goals and fish passage concerns as early 
in the consultation process as the information gathering process 
allows. Where gaps in information are identified in the consultation 
process, the Services will work with the applicant or licensee, Indian 
tribes, affected Federal and state agencies, and other participants to

[[Page 80902]]

identify necessary information and needed studies, as appropriate.
    Information requested by the Services should assist in identifying 
the necessary design or modification of the hydroelectric project 
(including potential fishways) to avoid and minimize project impacts on 
fish passage and protection and to allow for safe, timely, and 
effective fish passage. The Services may request studies to acquire 
information needed to ensure fish passage and expressly identify those 
studies necessary for the Services to exercise the FPA section 18 
authority. The cost of studies is borne by the license applicant or 
licensee. The Services will consider the least costly study 
alternatives that will provide the needed information to accomplish 
their goals when the cost information is provided for review.
    Studies are to be conducted over the period of time necessary to 
provide information needed to identify the fish that may be affected by 
the project, how they are affected, and the elements necessary for 
effective passage of these fish. The Services provide technical 
assistance in the form of review and comment on the applicant's or 
licensee's informational studies and proposed designs related to fish 
passage. When possible, the Services and applicant or licensee will 
work closely in all aspects of the study process. When information has 
been requested by the Services and that information is not provided by 
the applicant or licensee, fishway prescriptions may be based on the 
best information available and on the Services' best professional 
judgment.

B. Need for Fishways

    The Services' determinations regarding the need for fishways will 
be made on a case-by-case basis and may be based on a number of 
factors. The Services may consider whether the proposed project is, or 
would be: (1) located on a water body that is presently used by or that 
provides habitat for migratory fish or has the potential to provide use 
or habitat through run restoration or fish passage improvements; (2) 
located on a water body that is presently used by or provides habitat 
for riverine fish or that has the potential to provide use or habitat 
through fish passage improvement; (3) located on a water body where 
fish passage is necessary to restore or otherwise protect the resources 
and the exercise of reserved rights of affected American Indian Tribes; 
(4) located in a river basin where the need for fish passage is 
articulated in natural resource plans; (5) located in a river basin 
where the biological impact of the project without fish passage would 
affect, or has affected, fish distribution, production, and diversity 
within the river basin or surrounding river basins; (6) located in a 
river basin where a decision to prescribe fishways may conflict with 
state, regional, tribal, or Federal resource management priorities or 
affect other fish and wildlife resources through the introduction of 
non-native or exotic species, exposure to environmental contaminants, 
or other similar factors; (7) located on a water body where fish 
passage is necessary to conserve, recover, or continue the existence of 
species protected under the Endangered Species Act (ESA), or may 
adversely affect essential fish habitat as determined pursuant to the 
Magnuson-Stevens Act; (8) located in a river basin where the designated 
use, existing use, anti-degradation provisions, basin plans, or water 
quality criteria in applicable state, Federal, or tribal water quality 
standards developed pursuant to section 303 of the Clean Water Act 
include or are applicable to migratory fish or their habitat; and, (9) 
located in a river basin that is presently used by, or provides habitat 
for use by declining, depleted fish or interjurisdictional fish or that 
has the potential to provide use or habitat for declining, depleted, or 
interjurisdictional fish through restoration or fish passage 
improvements. Other factors may be considered based upon the specifics 
of the project and resources at issue.

C. Fishway Prescription Formulation

    Fishway prescriptions may take the form of general directives, 
specific standards, or design criteria or plans. They may include site 
access, facilities, structures, devices, operations, and measures, 
including monitoring, evaluation, compliance, and modification, 
necessary to ensure fishways pass fish in a safe, timely, and effective 
manner. The Services will formulate fishway prescriptions based upon 
all relevant information available, including fishway studies; FERC's 
consultation and environmental review processes; fish management, 
restoration or natural resource plans; historical records; scientific 
and technical literature; scientific expertise available to and within 
the Services; and any other related information available to the 
Services.
    Fishway prescriptions may address those elements of fishway 
construction, operation, and maintenance necessary to ensure effective 
fish passage and to maintain and restore all life stages over the term 
of the license. These elements include location, flow amounts, gas 
saturation, water temperature, construction materials, fishway design, 
operation and construction schedules, performance standards, and 
operational studies, and post-licensing effectiveness measures and may 
include scaled drawings showing plan views, elevation views, water 
surface profile, and cross-section views as appropriate. If Services 
fishway designs exist for a specific species, they will be provided to 
the applicant or licensee early in the prescription process. Where 
appropriate, the Services may provide fish passage measures for 
hydropower projects during abandonment, decommissioning, or otherwise 
curtailing operation. The Services will endeavor to prescribe fishways 
to achieve identified fish passage goals using the best available 
technology in a practical and effective manner. When the Services 
determine that equally effective alternative means of meeting and 
achieving identified fish passage goals exist, they will use the 
alternative with the minimum cost.
    When sufficient information is available, the Services will submit 
preliminary fishway prescriptions in response to FERC's notice that the 
project is ``ready for environmental analysis'' (REA). However, the 
Services are required by law to base prescriptions on substantial 
evidence in the FERC record. If information is insufficient at the time 
of the REA notice, the Services may exercise the FPA section 18 
authority by reserving the authority to prescribe. If a prescription is 
likely, the Services may submit information on fish passage for FERC to 
include in its analysis. When the Services are not able to prescribe at 
the time of the REA notice, but anticipate submitting a prescription, 
the Services will notify FERC and other participants of their target 
date for submittal of their fishway prescription. Preliminary 
prescriptions will be provided as soon as sufficient information 
becomes available, or the Services may exercise section 18 authority 
through a reservation of authority. If the Services determine that 
uncertainty continues regarding the impacts of a hydropower project on 
fish passage, fishway prescriptions will be conservative and resolve 
the uncertainty in favor of assuring the safe, timely, and effective 
passage and protection of fish. Fishway prescriptions may include post-
licensing evaluation and monitoring requirements to reduce uncertainty 
regarding effectiveness of fish passage.
    At any time during the process when the evidence supports the 
conclusion that fish passage is not currently needed

[[Page 80903]]

or is not currently feasible, the Services will inform the applicant or 
licensee and FERC and may exercise section 18 by reserving authority to 
prescribe fishways in the future.
    Once a preliminary fishway prescription is submitted to FERC, in a 
continuation of the consultation and coordination roles of the 
participants, any interested party may choose to provide new 
information related to the preliminary prescription to the Services. 
FERC's publication of its draft NEPA analysis provides a means for 
additional environmental information to be entered into FERC's record, 
which must be evaluated by the Services in the context of any 
preliminary prescriptions submitted. The Services will consider any new 
information, including new information provided in the draft NEPA 
document, and may review and modify their preliminary prescriptions as 
appropriate. Prior to FERC's release of the final NEPA analysis, the 
Services should either reaffirm the preliminary prescriptions for 
fishways or submit modified prescriptions for fishways for inclusion in 
any license or amendment issued by FERC. Furthermore, during the term 
of the license, the Services may modify a prescription in response to 
changes in circumstances and/or to new information.
    Fishway prescriptions must be related to stated fish passage goals 
identified or adopted by the Services and could include goals 
identified by other interested parties in the context of national, 
regional, and watershed level planning. When watershed, river, or 
project-specific goals have not been identified, they may be inferred 
from related documents (i.e., regional goals from national goals). 
Goals may also be developed by the Services based on available 
information and on scientific expertise. Thus, relevant goals may be 
extrapolated from existing documents or be developed within the 
licensing context. Goals related to fish passage should be included in 
the administrative record.
    Measures may be prescribed so that the Services can obtain 
information necessary to ensure the effectiveness of fish passage under 
the new license. These measures may be implemented either before or 
after construction and may include, but not be limited to, physical, 
hydraulic, biological, or other modeling; tests; monitoring 
evaluations; and inspections. These effectiveness measures are 
considered part of the fishway prescription.
    It is not the goal of the Services to engineer the final design of 
the hydropower project. Accordingly, the Services may, leave the final 
engineering details to the applicant or licensee and approve the 
engineering design proposed by the applicant or licensee to ensure that 
it adequately addresses the passage requirements of fish affected by 
the project. The Services will consider passage alternatives proposed 
by the applicant or licensee so long as passage requirements can be met 
to the satisfaction of the Services.

D. Documentation

    The Services will file with FERC documentation of substantial 
evidence that supports the need for fishways, provides the basis for 
the fishway prescription, and demonstrates that the fishway prescribed 
is reasonably related to goals identified by the Services. This 
documentation will be in addition to the information already contained 
in FERC's administrative record. Such documentation may include, as 
appropriate, primary and original sources of information, including 
documents, reports, studies, evaluations, assessments, and other 
related information relied upon by the Services to develop fishway 
prescriptions; reasons for decisions regarding the need for fishways; 
alternatives considered; and any other information relied upon by the 
Services to develop fishway prescriptions. The Services will exercise 
best professional judgme nt in developing fishway conditions based on 
documentation in the record.

V. Reservation of Authority to Prescribe Fishways

    Future fish passage needs, project design modifications, and 
management objectives, over the life of a license, cannot always be 
discerned or predicted when a hydropower project is licensed. Further, 
it is within the Services' discretion, as affirmed in Wisconsin Public 
Service v. FERC, 32 F. 3d 1165 (7th Cir. 1994), to either issue 
prescriptions during the licensing or amendment process or to reserve 
their authority. The Services will generally exercise section 18 of the 
FPA by reserving that authority for the purpose of maintaining the 
flexibility necessary to respond to new information prior to licensing 
and during the license term; e.g., fish passage needs, project 
modifications, management goals, environmental conditions, and 
technological innovations. When appropriate, the Services will exercise 
section 18 by reserving authority to prescribe fishways whether 
submitting a prescription or not. Because an exercise of section 18, 
through a reservation of authority to prescribe fishways, can be 
exercised at any time, such reservation does not preclude the 
prescription of fishways prior to license issuance or throughout the 
term of the license when, and if, a fishway may become necessary. The 
reservation provides notice to the applicant or licensee of the need to 
be prepared to construct a fishway during the term of the license. A 
reservation may be activated when environmental conditions change or 
new information becomes available. When activated, a reservation to 
prescribe fishways may result in the formulation of a post-licensing 
prescription. For example, section 18 authority may be exercised by a 
reservation where there are no fish at present, but where fish will 
become present after passage is provided at downstream sites.

VI. Post-Licensing Modification of Fishway Prescriptions

    The post-licensing modification of fishway prescriptions is a 
necessary mechanism to ensure effective fish passage after the license 
is issued. Fishway prescriptions may be modified by the Services, after 
license issuance, to address a number of factors, such as conditions of 
settlement or licensing; a change in local or regional conditions, 
technology, management emphasis, or ecological status; availability of 
new information; amendments to project design or operation; or a need 
for new or improved fishways at the project. Additionally, new fishways 
may be prescribed based on the above factors and on the license amended 
through the use of a license reopener provision.
    Post-licensing modification of fishway prescriptions is also 
appropriate during the initial stages of fishway operation when the 
results of fishway evaluations indicate that additional prescriptive 
measures beyond those provided in the license are necessary to make the 
fishway more effective. Performance evaluations are a measure necessary 
to ensure the effectiveness of the facility, structure, device, or 
operation for passing fish. Once the fishway is operating effectively, 
future modifications will be based on an established need that is 
supported by substantial evidence, as determined by the Services.
    Environmental changes may occur that require a modification of a 
prescription to maintain or restore the ability of a fishway to pass 
fish in a safe, timely, and effective manner. The development and 
implementation of comprehensive natural resource plans, including 
applicable state, regional, tribal, or Federal fishery management 
plans, may also warrant fishway prescription modification to meet new

[[Page 80904]]

or revised management goals. In such cases, the Services will work with 
the licensee to the extent possible to develop measures necessary to 
adapt the existing fishway to meet the passage needs of the plan's 
target resources before prescribing new facilities, structures, 
devices, operations, or measures. For all of these and other similar 
circumstances, the Services will meet with the licensee and other 
interested parties to identify the need for and specific type of 
modification required. The fishway prescription process is initiated 
post-licensing (i.e., when new information is available or when there 
is a license amendment), by the Services' filing a motion with FERC, 
with copies to the licensee and interested entities. The motion may be 
made pursuant to a reservation of authority, standard reopener, or 
license amendment proceeding. In all other respects, the prescription 
process is the same during both the pre- and the post-licensing 
periods.

VII. Intervention in the FERC Process

    FERC's regulations allow any participant with a demonstrable 
interest in a licensing, post-licensing, or amendment proceeding to 
file a motion to intervene, and to seek status as a party to the 
licensing proceeding. In order to preserve their ability to fully 
participate in the process and to appeal any adverse final licensing 
decision, the Services should file a timely intervention in all 
proceedings in which they have an interest, in accordance with FERC's 
regulations and applicable Departmental procedures. However, party 
status is not required for the Services to provide fish passage 
prescriptions.

VIII. Relationship to the Endangered Species Act

    This policy is intended to guide the Services in the exercise of 
their authorities under section 18 of the FPA. The requirements for 
conserving threatened and endangered species are separately set forth 
in the ESA and implementing regulations at 50 CFR part 402. Where fish 
passage for both listed and nonlisted species is involved, Services' 
personnel will fully coordinate fish passage efforts with endangered 
species efforts to provide consistent and unified fishway prescriptions 
for the safe, timely, and effective passage of fish. Fishway 
prescription formulation should be fully integrated with the ESA 
section 7 consultation process in FERC's licensing or during the 
license term.

IX. National Environmental Policy Act Compliance

    The Services provide preliminary prescriptions to FERC for 
inclusion in FERC's NEPA analysis of the proposed project. This allows 
the prescriptions to be analyzed in the context of the entire project. 
After FERC completes the NEPA analysis, the Services then modify the 
prescriptions if necessary, based on the NEPA analysis, and provide 
them to FERC for inclusion in the final NEPA document and in the 
license.

X. Scope of the Policy

    This policy applies to all activities of the Services related to 
the prescription of fishways at non-Federal hydroelectric projects 
licensed by FERC pursuant to the FPA. It does not expand the 
authorities of the Departments or the Services beyond those that 
currently exist and does not place additional requirements on anyone 
outside the Departments beyond those that already exist in the FPA and 
FERC's regulations at 18 CFR, Chapter I. This policy provides guidance 
for Services' personnel, but allows variations appropriate to 
individual circumstances.

XI. Authority for This Policy

    The authority for this policy is section 18 of the Federal Power 
Act, (16 U.S.C. 811).

    Dated: November 20, 2000.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service, Department of the Interior.

    Dated: December 18, 2000.
Penelope Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-32723 Filed 12-21-00; 8:45 am]
BILLING CODES 3510-22-S; 4310-55-S