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Chuck Sensiba

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A recognized national leader in hydropower licensing, relicensing, and license implementation and compliance, including all federal environmental and other regulatory policies affecting hydropower, Chuck provides strategic, legal, and policy counsel on a full range of existing and emerging issues affecting the hydropower industry.

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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.

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.

In June 2021, Senators Lisa Murkowski (R-AK) and Maria Cantwell (D-WA) introduced The Maintaining and Enhancing Hydroelectric and River Restoration Act of 2021, which would establish a tax credit for certain investments in dam safety and environmental improvements at qualified dams and separate tax credit to incentivize the removal of obsolete river obstructions, including nonpowered dams.

On July 14, 2021, the City and County of Denver, Colorado, acting through its Board of Water Commissioners (“Denver Water”), filed a Complaint in the United States District Court for the District of Colorado, requesting declaratory and injunctive relief against Boulder County over the County’s alleged efforts to delay and obstruct Denver Water’s expansion of the Gross Reservoir Hydroelectric Project.

In an order dated May 20, 2021, the Federal Energy Regulatory Commission (FERC, or the Commission) terminated the hydropower licenses for three projects located on the Tittabawasee River in Michigan—the Secord (P-10809), Smallwood (P-10810) and Sanford (P-2785) dams.  The termination by implied surrender follows a May 2020 breach at the…

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.

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.

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).

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. 

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.