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.
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.
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.
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.
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.
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
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.
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).
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.