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Surveillance and Monitoring Plan Outlines DSSMP that FERC develops for each licensed project.
4.1.2 Rivers and Harbors Act 33 U.S.C. § 403
The Rivers and Harbors Act RHA of 1899 contains provisions related to dumping in, excavating, and altering the course of navigable waterways of the United States. Navigable
waterways are “those waters that are subject to the ebb and flow of the tide andor are presently used, or have been used in the past or may be susceptible to use to transport interstate commerce
33 CFR §328.” Section 9 of the RHA makes it unlawful to build a dam in any navigable river, or other navigable water of the United States, without the approval of the Chief of Engineers and
Secretary of the Army 33 U.S.C. 401. Section 10 of the RHA prohibits the construction of any structure in or over any navigable water of the United States without the approval of the Chief of
Engineers and Secretary of the Army 33 U.S.C. 403. Section 13 of the RHA prohibits the discharge of refuse into navigable waters without the approval of the Chief of Engineers and
Secretary of the Army 33 U.S.C. 407; this section remains in effect but has been largely superseded by Sections 402 and 450 of the Clean Water Act.
4.1.3 National Environmental Policy Act 42 U.S.C. § 4321 et seq.
The National Environmental Policy Act NEPA of 1969 requires federal agencies to disclose to the public the environmental costs of any major federally funded or permitted project
which could result in environmental degradation, and to develop and consider appropriate alternatives to any proposal characterized by unresolved conflicts concerning alternative uses of
available resources 42 U.S.C.S. § 4332. These steps may take place through an Environmental Assessment EA or an Environmental Impact Statement EIS. In comparison to an EA, an EIS
involves a more detailed consideration of potential impacts of an action and a more extensive public comment process. NEPA is designed to assure that environmental concerns associated
with a proposed project are addressed before the project takes place. However, third parties with an interest in an agency decision who believe that the lead agency has made the wrong decision
are allowed to challenge it. When this occurs, the court reviewing a challenge can rule in favor of the agency only if it finds that the agency has considered the full suite of environmental
consequences of the proposed action Stycker’s Bay Neighborhood Council v. Karlen, 44 U.S. 223, 227 1980.
Both USACE and FERC must perform NEPA analyses as part of their permitting process for hydroelectric facilities. To assure that the two agencies are able to carry out their respective
regulatory responsibilities with regard to dam permitting without duplicating efforts, an MOU was signed between the USACE and FERC in 2011. The MOU established that 1 FERC would
serve as the lead federal agency for the purposes of preparing a NEPA document, and that 2
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USACE and FERC would work closely together, along with the public and other relevant agencies, in preparation of this document USACE and FERC 2011.
4.1.4 Fish and Wildlife Coordination Act 16 U.S.C. 661 et seq.
