On February 22, 2019, FERC issued a final rule (“Order No. 857”) conforming FERC’s regulations to the America’s Water Infrastructure Act (“AWIA”), which amended sections of the Federal Power Act (“FPA”) pertaining to preliminary permits, qualifying conduit hydropower facilities, and start for payment of annual charges. 

On October 23, 2018, President Trump signed the AWIA into law (see November 20, 2018 edition of the WER).  Under the AWIA, Congress amended Part 1 of the FPA in three categories: (1) preliminary permits; (2) qualifying conduit hydropower facilities; and (3) payment of annual charges.  First, the AWIA amended section 5 of the FPA to provide FERC with the authority to issue preliminary permits for four years and extend a permit once for an additional four years.  Prior to the AWIA, the FPA provided a maximum term for preliminary permits of three-year terms with a possible two-year extension.  The AWIA also gave FERC the authority to issue an additional four-year extension if warranted by extraordinary circumstances.  Order No. 857 revises FERC’s regulations at 18 CFR 4.82 to reflect these statutory changes to the preliminary permit program.

Second, the AWIA increased the maximum installed capacity for qualifying conduit exemptions from 5 MW to 40 MW.  Before enactment of the AWIA, the FPA provided that a qualifying conduit hydropower facility could not have installed capacity greater than 5 MW.  Furthermore, the AWIA shortened the period during which entities may challenge whether a project for which qualifying conduit hydropower facility status is sought meets the statutory definition necessary for such status to 30 days.  Prior to the AWIA, the FPA provided a 45-day period for entities to make this challenge.  These revisions are reflected in 18 CFR 4.30.

Third, the AWIA authorized FERC to issue extensions of the start of construction deadline for licenses by up to eight years.  As a result, the tabulation of annual charges paid by licensees and exemptees for the costs of FERC’s administration of its hydropower regulatory program will commence two years after a license is issued or any extension deadline expires.  Prior to enactment of the AWIA, FERC limited the start date for payment of annual charges to no later than four years after the issuance of a license or exemption.  Order No. 857 revises FERC’s regulations at 18 CFR 11.1 to reflect these statutory changes.

The final rule will become effective 30 days after publication in the Federal Register.

You may view Order No. 857 here.

More information on the AWIA is available here.