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FWS and NMFS; the consultation requirement embodied in Section 7 of the ESA is also reflected in FERC license application guidelines 18 CFR §5.
4.1.6 Magnuson Stevens Fishery Conservation and Management Act 16 U.S.C. §§ 1801 et seq.
The Magnuson-Stevens Fishery Conservation and Management Act MSFCMA of 1976 governs fishing activities in federal waters through the establishment of eight regional fisheries
management councils, which are charged with rebuilding depleted stocks and managing healthy ones. In recognition of the importance of habitat to fish populations, the MSFCMA prescribes
documentation of essential fish habitat EFH for each species it manages. Section 305b of the Magnuson-Stevens Fishery Conservation and Management Act and
its implementing regulations at 50 CFR 600.920 require federal agencies to consult with the National Marine Fisheries Service NMFS regarding actions that they undertake, fund, or
approve that may adversely affect essential fish habitat EFH for marine and anadromous species. In the case of a federally permitted hydroelectric dam, FERC must submit an EFH
Assessment to NMFS, describing potential adverse effects of the action on EFH and the species dependent on it, as well as proposed mitigation measures. The EFH Assessment may also be
incorporated into documents prepared for other purposes, such as Endangered Species Act ESA Biological Assessments pursuant to 50 CFR part 402 or National Environmental Policy Act
NEPA documents and public notices pursuant to 40 CFR part 1500. The Federal Power Act incorporates the MSFCMA EFH consulting requirement into the hydropower license application
process by directing applicants to include an assessment of EFH effects of the proposed project in Exhibit E of their application packet.
4.1.7 Clean Water Act
The purpose of the Clean Water Act CWA of 1972 is to restore and maintain the quality of the waters of the United States. The Clean Water Act contains three provisions that may be
relevant to the alteration of existing dams andor installation of hydropower equipment on existing dams: Section 303d, Section 401, and Section 404.
The EPA’s 303d list is a list of impaired and threatened waters that fail to meet water quality criteria for one or more pollutants based on required technology-based pollution controls
alone. States are required to monitor water quality at all rivers and evaluate progress towards restoration goals. When a water body is placed on the 303d list, state water quality agencies are
required to develop a Total Maximum Daily Load TMDL for the water body. A TMDL is a water quality restoration plan that identifies the maximum amount of a pollutant that a listed
water body can safely receive, as well as the sources of pollution that are currently causing the pollutants to exceed maximum acceptable values and the actions necessary to reduce pollutants
to these levels. In Rhode Island, the RIDEM Office of Water Resources has completed TMDLs
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addressing 141 causes of water pollution on 86 waterbodies RIDEM 2011. The water quality activities of RIDEM are discussed in further detail in Section 0 of this report.
Section 401 of the CWA requires applicants seeking federal licenses for activities on water bodies to obtain certificates stating that discharges from the proposed activities will not
violate provisions of the Clean Water Act. Section 401 Certifications are issued by states; in Rhode Island, RIDEM is the agency responsible for approving Section 401 Certifications. States
have successfully used Section 401 to make hydropower dam owners comply with water flow, antidegradation, water quality, and fish passage requirements that the state deems necessary to
achieve water quality and habitat goals Baer 2007. Section 404 of the CWA, overseen by the USACE, regulates the discharge of dredged
and fill material into waters of the United States, including wetlands. A hydroelectric developer will likely need to obtain a CWA permit to modify an existing dam if the project involves adding
dredged or fill material to the river to make modifications necessary to produce hydroelectricity. Authority for implementing Section 404 is shared by the EPA and the USACE. USACE issues
individual permit decisions and jurisdictional determinations; develops policy and guidance; and enforces Section 404 provisions, while EPA develops and interprets environmental criteria used
in evaluating permit applications, enforces Section 404 provisions, and has authority to veto USACE permit decisions.
4.1.8 Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund 42 U.S.C. §§ 9601 et seq.
The Superfund Act of 1980 was enacted to create a mechanism obliging owners of sites contaminated with hazardous waste to perform or pay for a proper clean-up of these sites.
CERCLA may come into play during the renovation of existing dams for hydropower if these dams are located in or near a Superfund site. CERCLA operates through a fund designated for
use by the Environmental Protection Agency EPA to use for clean up of hazardous wastes sites. After EPA has cleaned up a site, CERCLA enables the EPA to sue the parties responsible for the
hazardous waste on the site for recuperation of the costs of cleaning it up. The Centredale Superfund Site, located on the Woonasquatucket River at Allendale Mill Pond and Lyman Mill
Pond, contains dioxin, PCBs, volatile organic compounds, and metals in sediments, wetlands and surface waters. A clean-up of this site is currently underway. The PetersonPuritan Superfund
Site, located on the Blackstone River, includes the Pratt Dam, which is currently non-operational and is not impounding water; any effort to restore such a dam for hydropower would have to
consider the effects of refilling the impoundment, and the legal responsibility for clean-up of such a site CLF 2010.
4.1.9 Coastal Zone Management Act 16 U.S.C. § 1451 et seq.
