On September 30, the U.S. Court of Appeals for the Tenth Circuit issued an opinion in Save the Colorado, et al. v. Spellmon. The case arose from various conservation group challenges to the U.S. Army Corps of Engineers (Corps) and U.S. Fish and Wildlife Service’s (Service) decision to grant the city and county of Denver, acting through its Board of Water Commissioners (Denver Water or municipality), a discharge permit to expand the reservoir of its Gross Reservoir Hydroelectric Project, which is licensed by the Federal Energy Regulatory Commission (FERC or Commission). The central issue revolved around whether the U.S. courts of appeals have exclusive jurisdiction over challenges to non-FERC decisions arising under statutes related to the development of hydropower projects under the Federal Power Act (FPA). The Tenth Circuit ultimately held that petitions against orders by non-FERC agencies do not warrant exclusive jurisdiction in the U.S. courts of appeals.
DOE Announces $13.5M Distribution to Hydroelectric Facilities Through the Hydroelectric Production Incentive Program
On September 9, the U.S. Department of Energy (DOE) announced that it would distribute $13.5 million to incentivize hydroelectric generation in the United States. The financial support is part of the Hydroelectric Production Incentive Program, which provides funding for electricity generated and sold from dams and other water infrastructure projects that will add to or expand hydropower generation.
Senator Manchin’s Permitting Reform Bill Pulled From the Continuing Resolution
On September 21, Senator Joe Manchin (D-WV), Chairman of the Senate Energy and Natural Resources Committee, released the text of the Energy Independence and Security Act of 2022 (Act). This comprehensive Act was set to be included in the upcoming Continuing Resolution; however, on September 27, Manchin pulled the Act from the Continuing Resolution given bipartisan opposition. The Act sought to improve energy production in the United States by accelerating agency review of certain energy projects and modernizing permitting laws.
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FERC Equity Action Plan and Hydropower Licensing
On April 15, 2022, the Federal Energy Regulatory Commission (FERC) issued an Equity Action Plan (EAP) that introduces a two-year overhaul to review its policies to better promote equity and remove barriers to environmental justice communities. In particular, for hydropower projects, the EAP will focus on: (1) building and staffing its new Office of Public Participation, (2) strengthening Tribal government consultation and engagement policies and processes, (3) reviewing key regulations within the hydropower project licensing process, and (4) implementing equity readiness for staff to understand the EAP mission.
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FERC Issues Supplemental Notice on Technical Conference on Financial Assurances
On February 22, 2022, FERC issued a Supplemental Notice regarding its planned Technical Conference on its Notice of Inquiry on Financial Assurance Measures for licenses, scheduled to take place on Tuesday, April 26 at 11:30am.
The Supplemental Notice provides a schedule for the program and proposed panel topics. The first panel, Protecting Hydroelectric Facilities and
FERC Addresses Arguments on Rehearing of Order Dismissing License Application for Pumped Storage Project
On March 24, 2022, FERC issued an Order Addressing Arguments Raised on Rehearing and Denying Motion for Temporary Stay regarding The Nevada Hydro Company, Inc.’s (Nevada Hydro) October 2017 license application for its proposed Lake Elsinore Advanced Pumped Storage (LEAPS) Project.
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FERC Issues Notice of Proposed Penalty to Ampersand Cranberry Lake Hydro
On October 21, the Federal Energy Regulatory Commission (Commission or FERC) issued an Order to Show Cause and Notice of Proposed Penalty to Ampersand Cranberry Lake Hydro, LLC (Ampersand).
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Department of Energy Issues Report on Hydropower Permitting
On October 21, the Department of Energy (DOE)’s National Renewable Energy Laboratory (NREL) issued An Examination of the Hydropower Licensing and Federal Authorization Process, in which it examined the various statutory and regulatory requirements applicable to hydropower projects, and how those requirements protect water quality, fish and wildlife, among other things, they can also add to the time and cost of licensing. The report provides quantitative and qualitative analyses, considers the perspectives of developers and regulators, and addresses various studies on hydropower licensing timelines and costs, both in the United States and in other hydropower-producing countries. The report does not propose specific recommendations, but makes a series of key findings that it suggests can be used by policymakers and regulators to engage in informed discussions with project developers and other hydropower stakeholders.
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FERC Finalizes Revisions to Dam Safety Regulations
On December 16, 2021, the Federal Energy Regulatory Commission (Commission or FERC) issued a final rule amending its regulations governing the dam safety of FERC-licensed hydroelectric projects under the Federal Power Act (FPA). FERC’s final rule follows its July 16, 2020 Notice of Proposed Rulemaking (NOPR) (see July 21, 2020 edition of the WER), which FERC issued following the 2017 spillway incident at the Oroville Dam and the May 2020 dam failures at the Edenville Dam and Sanford Dam in central Michigan.
The Commission explained that its final rule accomplished four objectives that are essential to improving its dam safety program under part 12 of its regulations. First, it implements the two-tiered inspection program set forth in the NOPR, which will include a comprehensive assessment and a periodic inspection, each of which will be performed at a 10-year interval. The comprehensive assessment will be more in-depth than the current part 12 inspections, will formally incorporate the existing Potential Failure Mode Analysis process, and will also require a semi-quantitative risk analysis. The periodic inspection will be narrower in scope and primarily focused on performance of project works between comprehensive assessments. This two-tier structure retains FERC’s current five-year interval between part 12 inspections at each Commission-licensed project and is consistent with the Federal Emergency Management Agency’s (FEMA) recommendation that “formal” inspections be conducted every five years. FERC’s rule explained that this two-tier inspection scheme is similar to those used by the Bureau of Reclamation and the Army Corps of Engineers.
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Infrastructure Bill Provides Opportunities for Hydroelectric Industry
On November 5th, the U.S. House of Representatives passed the more than $1.2 trillion Infrastructure Investment and Jobs Act, also known as the bipartisan infrastructure framework (BIF). The Senate had already approved the bill back in August, and it now heads to the President’s desk for signature. The BIF represents a core piece of President Biden’s agenda and provides significant funding for infrastructure improvements in energy and water, including over $900M in waterpower incentives for new and existing hydropower, pumped storage, and marine energy. Additional spending is provided for dam safety and removal.
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