[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
