On September 22, the Federal Energy Regulatory Commission (Commission or FERC) issued an order on rehearing (Rehearing Order), denying the U.S. Department of the Interior’s (Interior) request to include a requirement for a hydroelectric project to notify resource agencies if any activity may affect a federally listed Endangered Species Act (ESA) species and had not already been considered in the issued license (Notification Recommendation).

The ESA requires federal agencies to consult with Interior if an agency action may affect a listed species or its critical habitat. This consultation generally ends when a final license or permit is issued. In the relicensing proceeding for the Rollinsford Hydroelectric Project No. 3777 (Project), the only ESA-listed species with the potential to occur in the Project area is the northern long-eared bat, and consultation for this species was completed through measures in the license to limit tree clearing during certain seasons. Therefore, without another specific species to consult on under the ESA, Interior submitted the Notification Recommendation under Federal Power Act (FPA) Section 10(j), which allows certain resource agencies, including Interior, to make recommendations for inclusion in the license, which FERC must adopt unless it determines that the recommendation conflicts with applicable law.

In the Rehearing Order, the Commission rejected Interior’s 10(j) Notification Recommendation for the second time. In the earlier Commission order issuing a subsequent license (License Order) for the Project, the Commission declined to include Interior’s Notification Recommendation as a requirement in the license. There, the Commission explained that post-license ESA consultation procedures are already in place, thus rendering Interior’s recommendation unnecessary. The Commission also referenced standard license Article 11, which requires that a licensee complies with modifications required by the Commission for the conservation and development of fish and wildlife resources, upon the Commission’s initiation or upon recommendation of Interior or other wildlife resource agencies. Interior requested rehearing of the License Order, arguing that the Commission acted arbitrarily and capriciously in violation of the Administrative Procedure Act (APA) in rejecting the Notification Recommendation.

In the Rehearing Order, the Commission reiterated its reasoning to reject the Notification Recommendation and reinforced its approach as consistent with recent Commission staff orders. In City of Woonsocket, R.I. (a licensing proceeding where Interior recommended a similar notification requirement), Commission staff declined to include the notification condition because an Interagency Task Force report already provided a framework for identifying issues, information gaps, and the need for protection measures post-licensing. Following staff’s earlier reasoning, the Rehearing Order concluded that the Task Force report, coupled with Article 11 and the Commission’s regulations, already provided post-license ESA procedures, thus obviating the need for Interior’s proposed measure.

FERC’s order is available here.