On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which includes a $1.4 trillion omnibus spending bill for fiscal year (FY) 2021 along with $900 billion in COVID-19 stimulus relief.  The Act includes a variety of measures to promote clean energy and climate policy, as well as several hydropower-related provisions. Continue Reading Hydropower Provisions Included in 2021 Appropriations Bill

In 2019, the D.C. Circuit in Hoopa Valley Tribe v. FERC  held that the plain language of Clean Water Act (CWA) Section 401 establishes a bright-line maximum period of one year for States to act on a request for water quality certification and that the Federal Energy Regulatory Commission (Commission) was arbitrary and capricious when it failed to enforce the statutory time-limit.  Since the Hoopa Valley Tribe ruling, the Commission has repeatedly held that a State waives its authority under Section 401 when it has sought to extend the one year review period by requesting or directing the applicant to withdraw and resubmit its application to afford the state reviewing agency more time.  In several recent cases, however, the Commission has found that there may be instances where a withdrawal and resubmission of a water quality certification by the applicant does not result in a State’s waiver of Section 401 certification authority. Continue Reading FERC’s Clean Water Action Section 401 Waiver Analysis Continues to Evolve

On August 18, 2020, the Federal Energy Regulatory Commission  (FERC) issued an order clarifying its filing requirements in the event its e-filing system malfunctions.

By way of background, in August 2019, FERC issued Order No. 862, which revised its procedural regulations to require that any documents delivered to the Commission by any means other than the United States Postal Service be sent to an off-site screening facility instead of to Commission headquarters on First Street in Washington D.C.  (See September 17, 2019 edition of the WER).  Order No. 862 was designed to enhance security for the Commission and its staff and was determined by the Commission not to impact the public’s ability to make timely filings, since the off-site screening facility would log, stamp, and record deliveries just as staff would do at the headquarters location.  In the order, FERC continued to strongly encourage use of e-filing.  Order No. 862 was originally slated to become effective 60 days after its publication in the Federal Register, but the effective date was ultimately delayed until July 1, 2020 (see November 19, 2019 and July 2, 2020 editions of the WER). Continue Reading FERC Clarifies Policy for Ensuring Timely Filing in the Event of E-Filing Malfunction

The Federal Energy Regulatory Commission (FERC or the Commission) released a Notice of Inquiry (Notice) on January 19, 2021 to solicit public comments on whether FERC should impose financial assurance requirements on hydropower projects to ensure that licensees have adequate financial resources to maintain their projects in safe condition.  The Notice comes on the heels of a significant and costly failure of two dams in Michigan in May 2020 following years of the licensee’s noncompliance with FERC dam safety orders, partly due to its alleged inability to pay for the work required.  In the months since the dam failures, the licensee declared bankruptcy, leaving insufficient resources to conduct over $300 million in repairs to four different dams, reimburse neighboring property owners for damages caused by flooding, and pay the substantial civil penalty recently proposed by FERC.  Continue Reading FERC Floats Financial Assurance Requirements for Hydropower Projects To Ensure Funding for Dam Safety and Environmental Requirements

The Federal Energy Regulatory Commission (FERC) has issued an order proposing a $15 million civil penalty in response to the failure of a licensee to respond to FERC dam safety orders in the wake of the failure of the Edenville dam and downstream FERC-licensed Sanford Dam (Project No. 2785) in Michigan in May 2020 (see June 1, 2020 edition of the WER).  The December 9, 2020 Order to Show Cause and Notice of Proposed Penalty followed months of FERC orders and directives to the licensee related to the catastrophic failure of the two dams, which resulted in the evacuation of 10,000 people, an estimated $190 million in economic damages to local residents, and $55 million in response costs, prompting Governor Gretchen Whitmer to request a disaster declaration from the federal government. Continue Reading FERC Issues Order Proposing Substantial Penalty for Licensee in Michigan Dam Failure

On Tuesday, October 13, the National Hydropower Association (NHA) announced its partnership with American Rivers, the World Wildlife Fund, and other environmental groups in a “Joint Statement of Collaboration on U.S. Hydropower: Climate Solution and Conservation Challenge.” The Joint Statement, which was facilitated over the last two and a half years through Stanford University’s Uncommon Dialogue process, is a collaborative effort to address climate change by encouraging “the renewable energy and storage benefits of hydropower and the environmental and economic benefits of healthy rivers.” Continue Reading Hydropower Advocates and Environmental Groups Reach Historic Agreement

On December 23, 2020, FERC accepted Southwest Power Pool, Inc.’s (“SPP”) proposal to implement the Western Energy Imbalance Service Market (“WEIS Market”), a voluntary market providing for security-constrained economic dispatch to balance supply and demand every five minutes. SPP’s proposal consisted of a Tariff to implement the WEIS Market, a joint dispatch agreement executed by eight participating entities, and the Western Markets Executive Committee Charter to establish the WEIS Market’s governance structure and procedures. The December 23rd order follows FERC’s rejection of SPP’s WEIS Market proposal in July 2020. Continue Reading FERC Accepts SPP Energy Imbalance Market Proposal

On January 4, 2021, Mark C. Christie was sworn in as FERC’s newest Commissioner. The Senate previously confirmed the nomination of Commissioner Christie, along with the nomination of now-current-Commissioner Allison Clements, in a late night voice vote on November 30, 2020 (see December 8, 2020 edition of the WER). With the swearing in of Commissioner Christie, FERC now has a full five-member Commission with three Republicans (Chairman Danly and Commissioners Chatterjee and Christie) and two Democrats (Commissioners Clements and Glick). Continue Reading Mark C. Christie Sworn in as FERC Commissioner

On December 21, 2020, FERC modified its previous cost-of-service compensation decisions allowing Constellation Mystic Power, LLC (“Mystic”) to continue operating two gas-fired generation facilities (“Mystic 8 and 9”) fueled exclusively by an affiliate, Everett Marine Terminal (“Everett”), which, like Mystic, is owned by Exelon Generation Company, LLC (“Exelon”). Commissioner Richard Glick dissented, reiterating his belief that FERC has exceeded its jurisdiction to “bail out” the liquified natural gas (“LNG”) import terminal. Continue Reading FERC Alters Mystic’s Cost-of-Service Agreement; Commissioner Glick Dissents Again

On December 17, 2020, FERC issued a final rule permitting Solid Oxide Fuel Cell systems with integrated natural gas reformation equipment to be certified as cogeneration qualifying facilities (“QFs”) under the Public Utility Regulatory Policies Act of 1978 (“PURPA”).  The Final Rule follows FERC’s October 15, 2020 Notice of Proposed Rulemaking (“NOPR”) (see October 21, 2020 edition of the WER), and addresses the comments received in response to the NOPR.  While the NOPR would have limited the type of eligible fuel cells to only solid oxide fuel cells, the Final Rule modified the definition of “useful thermal energy” in section 292.202(h) of FERC’s regulations to include all fuel cells that use waste heat in an integrated fuel reforming process. Continue Reading FERC Finalizes Rule Permitting Fuel Cell Systems to Qualify as Cogeneration QFs