• Located on navigable waters
• Located on federal lands
• Using water from a federal dam 
• Constructed after August 26, 1935 and located on a non-navigable stream that affects the interests of interstate or foreign commerce, such as the provision of power to an interstate power grid

• Hydropower Licensing has regional branches
• Hydropower Administration and Compliance has branches for Land Resources, Engineering Resources, Environmental and Aquatic Resources
• Dam Safety & Inspections has Risk Informed Decision Making and Security branches and  regional offices

• Issuing license orders and study plan determinations
• Acting as a quasi-judicial body and administering quasi-legal proceedings
• Maintaining the administrative record
• Leading the National Environmental Policy Act process
• Enforcing license conditions
• Conducting dam safety/environmental inspections
• Tribal trust responsibilities to federally recognized tribes, similar to other Federal agencies

Tribes, agencies, and nonprofit organizations should be aware of the following key laws and policies.

For more information about the Federal Power Act and other key laws, see the HRC’s Citizen Guide for Effective Participation in Hydropower Licensing.

Federal Power Act

The Federal Power Act is the primary federal statute governing the wholesale transmission and sale of electric power, as well as the regulation of hydroelectric power. Below are several key provisions of the Act:

• Section 4(e) – Equal Consideration
• Section 10(a) – Comprehensive Development and Recommendations from Tribes, Agencies, and the Public
• Section 10(j) – State and Federal Fish and Wildlife Agency Recommendations
• Section 10(a)(2) – Consistency with Comprehensive Plans
• Mandatory Conditions
• Section 18 – Fishway Prescriptions
• Section 4(e) – Protection and Utilization of Federal Lands designated as Reservations. This applies primarily to most National Forests but may apply to lands managed by other federal agencies.
• Other key provisions include: 10(e), 3o(c)

Clean Water Act (401 certifications)

Section 401 of the Clean Water Act (CWA) bars FERC needs to obtain a 401 certification from the state(s) or authorized tribe where the project is located certify that the project will complies with applicable state or tribal water quality standards. These water quality certifications often contain conditions which FERC must include as license conditions.

Tribal Trust Responsibility

This is a legal obligation that originates from the unique, historical relationship between the United States and Indian tribes. The trust responsibility consists of the highest moral obligations that the United States must meet to ensure the protection of federally recognized tribal lands, assets, resources, treaty, and similarly recognized rights.

Treaty Rights are rights set out in treaties or legal agreements between the United States and a Tribal Nation.

FERC’s Tribal Consultation Policy outlines how FERC will consult with tribes through government-to-government dialogue between official representatives of Tribes and FERC.

Depending on your role and the location of the project, you should be aware of a number of other national laws, policies, and processes.

• National Historic Preservation Act (NHPA) - Enacted in 1966, this establishes a national preservation program and a system of procedural protections, which encourage both the identification and protection of historic resources, including archeological resources, at the federal level and indirectly at the state and local level. Section 106 is a review process to ensure that federal agencies consider the effects of federally licensed, assisted, regulated, or funded activities on historic properties listed or eligible for listing on the National Register.
• National Environmental Policy Act (NEPA) - Enacted in 1969, NEPA requires all federal agencies to analyze the environmental impacts of their actions along with alternatives to those actions. When public resources may be affected by a proposed action, the appropriate federal agency uses a process that involves public scoping to receive initial comments on the action, holds public meetings to receive input, and creates the draft and final Environmental Assessment (EA) or a more robust Environmental Impact Statement (EIS) depending on the complexity of the proposal, possible environmental impacts, and the level of public concern.
• Architectural Barriers Act (ABA) / Americans with Disabilities Act (ADA) - These laws were passed to protect the civil rights of people with disabilities. ABA and ADA provide a framework and standards for providing accessibility. ABA (1968) standards apply to facilities built or altered with federal funds (grant or loan) or leased by the federal government. The ADA of 1990 is a civil rights law enforced by the U.S. Department of Justice and provides access for people with disabilities by establishing standards for design and construction.
• Endangered Species Act (Sec. 7) - The Endangered Species Act enacted in 1973 was created to prevent the extinction of plants and animals while helping to recover those species that have been listed as being threatened or endangered.
• Wild and Scenic Rivers Act (Sec. 7) - The Wild and Scenic Rivers act was enacted by Congress in 1968 to serve as a counter to an era of dam building, protecting some of the Nation’s greatest remaining free-flowing rivers. Section 7(a) prohibits FERC from licensing the construction of hydropower projects on or directly affecting a Wild and Scenic River. In addition, Section 7 also includes an evaluation and determination by the river administering agency of all FERC projects undergoing relicensing and licensing of new projects that are upstream, downstream, or on a tributary to a designated river. Section 7(b) has similar protections for congressionally authorized study rivers.
• Lease of Power Privilege is a contractual right given by the Bureau of Reclamation (Reclamation) to a non-federal entity to use a Reclamation asset (e.g., dam or conduit) for electric power generation in a manner that is consistent with Reclamation project purposes. The project must not impair the efficiency of Reclamation-generated power or water deliveries, jeopardize public safety, or negatively affect any other Reclamation project purpose.
• Land managing agency rights of way / Special use - Permits grant permission to use federal lands.
• Water rights (administered by states) are legal rights to use water from a river, lake, stream, or other water source.
• Coastal Zone Management Act (CZMA), Section 307 - This requires licensees to obtain a valid certification approved by the State to assure that project construction and operation will be consistent with the State's coastal zone management program.
• Outdoor Recreation Act of 1963 - This Act declares that " all American people of present and future generations be assured adequate outdoor recreation resources." It states further that the federal government should "promote the coordination and development of effective programs relating to outdoor recreation."
• Other state and federal resource management plans and policies can determine and oversee how those agencies manage public land and resources. Agency staff who are supporting hydropower licensing also need to know the legal requirements, regulations and policies relevant to operations, public involvement and river management for their park unit, forest or recreation area.

• Organic Act (1916) and Redwood Act Amendment (1978) - The National Park Service was established through the National Park Service Organic Act to promote and regulate the use of the National Park System (i.e., federal lands known as national parks, monuments, and reservations), “to conserve the scenery, the natural and historic objects, and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”
• Federal Power Act, Sections 797(a) and 797(c) provide protections for units of the National Park System that may be affected by the licensing of FERC hydropower projects.