Charles Sensiba

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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

At the June 18, 2020 and July 16, 2020 Commissioner meetings, FERC issued a combined five orders continuing its trend of finding that a state has waived its Clean Water Act (“CWA”) section 401 authority for failing to issue a water quality certification within one year from receiving the request for certification.  Since the D.C. Circuit’s 2019 ruling in Hoopa Valley Tribe v. FERC (see December 11, 2019 edition of the WER), which held that the plain language of section 401 limited a state’s review to one year, the Commission has consistently found state waiver when the time period has been exceeded under a variety of circumstances.  Below is a summary of FERC’s recent orders finding that a state certifying authority waived its section 401 authority.…
Continue Reading FERC Continues Trend Finding State Water Quality Certification Waiver

In the two months since the failures of the Edenville Dam and the downstream FERC-licensed Sanford Dam (Project No. 2785) in central Michigan, there has been a flurry of correspondence between the Federal Energy Regulatory Commission (Commission or FERC) and the licensee, including a series of directives and the warning of potential enforcement actions from the Commission, as well as discussion of possible harm to protected species following the dam breaches. …
Continue Reading Aftermath of the Michigan Dam Failures: Licensee Delays and Possible ESA Concerns

The Federal Energy Regulatory Commission (Commission or FERC) has proposed to revise its Part 12 dam safety regulations through a Notice of Proposed Rulemaking (NOPR) released at its monthly public meeting on July 14, 2020.  There will be a 60-day public comment period once the proposed regulations are published in the Federal Register.  The proposed revisions contain three major changes to the existing FERC dam safety regulations: …
Continue Reading FERC Proposes Overhaul of Dam Safety Regulations

On July 2, 2020, FERC staff issued an order granting an exemption from licensing to the City and County of Denver, Colorado, through its Board of Water Commissioners (“Denver Water”) for its Strontia Springs Hydroelectric Project (“Project”).  Prior to FERC issuing the exemption order, Denver Water held an original minor license for the Project, which is located on the South Platte River in Douglas and Jefferson counties, Colorado.…
Continue Reading FERC Issues Federal Power Act “Exemption” in Lieu of Relicensing to Colorado Hydropower Project