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United States Department of the Interior

FISH AND WILDLIFE SERVICE 
Washington, D.C. 20240

In Reply Refer To:
FWS/AFHC/DFPA/BFA

Memorandum
 
To: Regional Directors, Regions 1-7                                                       April 24, 2002
From: (Acting) Director                /s/ Marshall P. Jones, Jr.
Subject: Timely Filing of Comments on FERC’s Public Notices
At an Interagency Hydropower Committee meeting on March 19, 2002, Mark Robinson, Director of the  Office of Energy Projects at the Federal Energy Regulatory Commission, announced that FERC will no longer grant extensions of time for filing letters, comments, recommendations, and mandatory conditions and prescriptions.  This applies to all FERC public notices on hydroelectric projects having time deadlines.  To date, FERC has not issued guidance, instruction, direction, or policy on this new way of doing business, nor are we aware if it plans to produce such written assistance.

In the past, if agencies, stakeholders, or parties to a licensing proceeding needed additional time to file letters, comments, recommendations, or conditions; requests were granted by FERC.  However, because FERC has been repeatedly charged with taking too much time to process hydroelectric license applications, it apparently believes that denying additional time requests will, in part, help expedite the processing of applications.

The Service’s Regional and Field Offices must pay particular attention to FERC’s public notice dates to ensure that our filings on the Ready-for-Environmental Analysis and other notices are punctual and are received by FERC on or before the scheduled date.  If our filings are received after the date requested in the notice, FERC believes it has the discretion to downgrade the filings.

This is particularly important regarding the Service’s statutory responsibilities under the Federal Power Act.  In particular, if our fishway prescription provisions [under section 18] and reservation protection provisions [under section 4(e)] are filed after the due date, this may 
jeopardize the significance of our mandatory conditions as FERC may consider them as non-mandatory.  Similarly, FERC may convert a 10(j) recommendation into a 10(a) recommendation and no longer give the recommendation “due weight.”

In addition, if our filings to FERC notices may have far-reaching biological, procedural, or administrative implications at the regional or national level, a briefing statement should be prepared for the Director, and provided through the Division of Federal Program Activities.

Please ensure that appropriate staff are aware of these changes in FERC practice.  If you have questions, please contact Robin Nims Elliott, Branch Chief, Branch of Federal Activities, at 
(703) 358-2183.



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