At its May 23, 2024 open meeting, the Federal Energy Regulatory Commission (“FERC”) issued a Notice of Proposed Rulemaking (“NOPR”) proposing to establish a one-year “reasonable period of time” for certifying authorities to act on requests for water quality certification under section 401 of the Clean Water Act (“CWA”). The proposed rule also clarifies that all FERC authorizations “that have the potential to discharge into waters of the United States,” including exemptions from licensing, require either a section 401 water quality certification or waiver thereof.Continue Reading FERC Issues Notice of Proposed Rulemaking to Conform to EPA’s Recent CWA § 401 Rule
DOE Releases Awaited Draft Guidance for Bipartisan Infrastructure Law Hydropower Incentive
On February 8, the U.S. Department of Energy (DOE) released draft guidance (Draft Guidance) on the Infrastructure Investment and Jobs Act (Act) (known as the Bipartisan Infrastructure Law) Section 247 incentive, one of the key hydroelectric provisions offered by the legislative package. The Act, which President Biden signed in November 2021, provides $553.6 million in total funding to the Section 247 program for “capital improvement” projects that maintain and enhance existing hydroelectric facilities to ensure generators continue to provide clean electricity, while integrating renewable energy resources such as wind and solar, improving dam safety, and reducing environmental impacts. The Draft Guidance focuses on the Section 247 application process and how DOE will rate and select incentive recipients. DOE will accept comments on the Draft Guidance until February 28th, which provides hydropower licensees an opportunity to help shape the final guidance, and alert DOE to any potential obstacles that could prevent licensees from successfully participating in the Section 247 program.Continue Reading DOE Releases Awaited Draft Guidance for Bipartisan Infrastructure Law Hydropower Incentive
U.S. Court of Appeals for the 9th Circuit Affirms Lower Court’s Dismissal of Tribe’s Case Against City of Seattle
On December 30, 2022, the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) affirmed a lower court’s denial of the Sauk-Suiattle Indian Tribe’s (“Tribe”) motion to remand to state court and its dismissal of the Tribe’s action against the City of Seattle (“City”) for lack of subject matter jurisdiction. The case concerns Gorge Dam, which is located on the Skagit River in Washington and is one of three dams that make up the City’s Skagit River Hydroelectric Project (“Skagit River Project” or “Project”).Continue Reading U.S. Court of Appeals for the 9th Circuit Affirms Lower Court’s Dismissal of Tribe’s Case Against City of Seattle
Funding Begins for Hydropower Research and Development and Fish Passage
In December 2022, several federal agencies announced awards and recommendations for Bipartisan Infrastructure Law (BIL) funding. The BIL represents a core piece of President Biden’s agenda and provides significant funding for infrastructure improvements in energy and water, including over $900 million in waterpower incentives for new and existing hydropower, pumped storage, and marine energy. Funding is also provided to incentivize research, development, demonstration, and commercial application (R&D) efforts in the water power industry for technologies that improve capacity, efficiency, resilience, security, reliability, affordability, and environmental impact.Continue Reading Funding Begins for Hydropower Research and Development and Fish Passage
Hydropower: 2022 Lookback and 2023 Trendspotting
2022 was an active year for the hydropower industry, and as 2023 begins, it’s appropriate to review last year’s highlights and forecast the anticipated trends to continue this year. Continue Reading Hydropower: 2022 Lookback and 2023 Trendspotting
Tenth Circuit Resolves Jurisdictional Dispute, Finds FPA Jurisdictional Limit Does Not Apply to Non-FERC Agency Orders
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.Continue Reading Tenth Circuit Resolves Jurisdictional Dispute, Finds FPA Jurisdictional Limit Does Not Apply to Non-FERC Agency Orders
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.Continue Reading DOE Announces $13.5M Distribution to Hydroelectric Facilities Through the Hydroelectric Production Incentive Program
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.Continue Reading Senator Manchin’s Permitting Reform Bill Pulled From the Continuing Resolution
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.
Continue Reading FERC Equity Action Plan and Hydropower Licensing
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