---
kind: "section"
citation: "43 C.F.R. § 45.74"
title: "43"
number: "45.74"
heading: "How will DOI analyze a proposed alternative and formulate its modified condition or prescription?"
url: "https://uscodex.org/cfr/43/45.74"
---

# §45.74. How will DOI analyze a proposed alternative and formulate its modified condition or prescription?

- (a) In deciding whether to accept an alternative proposed under § [45.71](/cfr/43/45.71.md) or [45.72](/cfr/43/45.72.md), DOI must consider evidence and supporting material provided by any license party or otherwise reasonably available to DOI, including:
  - (1) Any evidence on the implementation costs or operational impacts for electricity production of the proposed alternative;
  - (2) Any comments received on DOI's preliminary condition or prescription;
  - (3) Any ALJ decision on disputed issues of material fact issued under [§ 45.60](/cfr/43/45.60.md) with respect to the preliminary condition or prescription;
  - (4) Comments received on any draft or final NEPA documents; and
  - (5) The license party's proposal under § [45.71](/cfr/43/45.71.md) or [45.72](/cfr/43/45.72.md).
- (b) DOI must accept a proposed alternative if it determines, based on substantial evidence provided by any license party or otherwise reasonably available to DOI, that the alternative:
  - (1) **Will, as compared to DOI's preliminary condition or prescription—**
    - (i) Cost significantly less to implement; or
    - (ii) Result in improved operation of the project works for electricity production; and
  - (2) **Will—**
    - (i) If a condition, provide for the adequate protection and utilization of the reservation; or
    - (ii) If a prescription, be no less protective than DOI's preliminary prescription.
- (c) For purposes of paragraphs [(a)](#a) and [(b)](#b) of this section, DOI will consider evidence and supporting material provided by any license party by the deadline for filing comments on FERC's NEPA document under [18 CFR 5.25(c)](/cfr/18/5.25.md?p=c).
- (d) When DOI files with FERC the condition or prescription that DOI adopts as its modified condition or prescription under [§ 45.73(a)(2)](/cfr/43/45.73.md?p=a-2), it must also file:
  - (1) **A written statement explaining—**
    - (i) The basis for the adopted condition or prescription;
    - (ii) If DOI is not accepting any pending alternative, its reasons for not doing so; and
    - (iii) If any alternative submitted under [§ 45.71](/cfr/43/45.71.md) was subsequently withdrawn by the license party, that the alternative was withdrawn; and
  - (2) Any study, data, and other factual information relied on that is not already part of the licensing proceeding record.
- (e) The written statement under [paragraph (d)(1)](#d-1) of this section must demonstrate that DOI gave equal consideration to the effects of the condition or prescription adopted and any alternative not accepted on:
  - (1) Energy supply, distribution, cost, and use;
  - (2) Flood control;
  - (3) Navigation;
  - (4) Water supply;
  - (5) Air quality; and
  - (6) **Preservation of other aspects of environmental quality.**

## Notes

### Authority

Authority: 16 U.S.C. 797(e), 811, 823d.

### Source

Source: 80 FR 17194, Mar. 31, 2015, unless otherwise noted.