EP 1165-2-1
30 Jul 99
foreclosing the formulation or implementation of any reasonable and
prudent alternative measures. Promptly after conclusion of
consultation, the FWS/NMFS shall provide the agency with a biological
opinion on how the agency's proposed action will affect the species or
critical habitat and, if appropriate, shall suggest reasonable and
prudent alternatives. Federal agencies are required to consider
reasonable and prudent measures to protect and conserve the species
and critical habitat.
24-12. Federal Energy Regulatory Commission (FERC) Licenses. Under
the Federal Power Act (Public Law 280, 66th Congress), non-Federal
entities are required to obtain from the Federal Power Commission (now
FERC) a license for construction and operation of hydroelectric power
developments affecting navigable waters, lands of the United States,
or interstate commerce. The Act requires the proposed power project
to be optimally related to comprehensive development plans. All
applications for license are referred to the Corps and other agencies
for views and recommendations concerning licensing and provisions to
be included in the license or renewal if issued. Applications for
FERC permits which give the applicant priority of interest in a power
site pending completion of studies, but do not authorize construction,
are likewise referred to the Corps. The Act also specifies that no
license affecting navigation shall be issued until the plans are
approved by the Chief of Engineers and the Secretary of the Army. (ER
1110-2-1454)
a. License Renewal. The United States has the right, upon
the expiration of any FERC license, to take over and thereafter to
operate the project under certain circumstances, if such action is in
the public interest. The Corps is required to comment on license
renewal applications. Although a number of licenses have recently
expired, the Corps has, to date, not recommended takeover in any case
to the FERC.
b. Distinction between Corps of Engineers and FERC
Jurisdiction with Respect to Non-Federal Hydroelectric Project.
(1) The following procedures are currently being followed in
connection with Department of Army permit responsibilities involving
pre-1920 legislation:
(a) In regard to FERC licensing of projects, Corps
responsibilities under Section 10 of the River and Harbor Act of 1899,
for power related activities, may normally be met through the FERC
licensing procedure including insertion in the license of terms and
conditions in the interest of navigation. Section 4(e) of the Federal
Power Act provides for approval of project plans by the Chief of
Engineers and Secretary of the Army from the standpoint of interests
of navigation. On 11 March 1975, the Secretary of the Army delegated
the subject authority to the Chief of Engineers. On 5 September 1980,
the Chief of Engineers delegated Section 4(e) approval to the
respective division. The consideration for Corps approval under
Section 4(e) will be limited to effects of a project on navigation.
(b) Non-Federal hydroelectric power proposals at Corps
projects must satisfy public interest requirements in water resources
development as required by the Federal Power Act and must meet the
following Corps of Engineers general requirements:
-- Hydroelectric power development must be compatible with
authorized purposes of the Federal project. Verification of
compatibility may require physical and/or mathematical modeling, costs
24-4
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