On May 21, 2020, FERC denied two 2017 complaints alleging that PJM Interconnection, L.L.C.’s (“PJM’s”) capacity procurement rules are unjust and unreasonable as applied to seasonal resources. FERC concluded complainants failed to show that PJM’s single annual capacity product is unjust and unreasonable, and rejected arguments that the rules discriminate against seasonal resources. Commissioner Richard Glick filed a separate concurring statement.
President Trump Issues Executive Order Directing Regulatory Relief to Support Economic Recovery from COVID-19
On May 19, 2020 President Trump issued an Executive Order directing federal agencies to “combat the economic consequences of COVID-19” by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”
Legislative Proposal in California Seeks to Avoid Waiver for Water Quality Certifications Under Section 401 of the Clean Water Act
As the California Legislature prepares its 2021 budget and continues to address the impacts of COVID-19, the Subcommittee 2 on Resources, Environmental Protection, Energy and Transportation (Subcommittee) proposed language in a trailer bill related to the State Water Resources Control Board’s (Water Board) authority to issue water quality certifications under section 401 of the Clean Water Act (CWA) for federally licensed and permitted activities. If enacted, the bill purportedly would authorize the Water Board to meet the one-year action requirement under CWA section 401 by issuing a water quality certification—even if California Environmental Quality Act (CEQA) requirements are not met. Further, the bill seeks to authorize the Water Board to make any changes to conditions in the water quality certification at a later date after CEQA requirements are met.
The Department of Energy’s Water Power Technologies Office Releases Request for Information on Hydropower Program
On April 27, 2020, the Department of Energy’s (DOE) Water Power Technologies Office (WPTO) released a Request for Information (RFI) to gather information and feedback from hydropower industry stakeholders on its Hydropower Program Research and Development (R&D) Strategy and Hydro and Water Innovation for a Resilient Electricity System (HydroWIRES) Research Roadmap.
FERC Issues Order Finding Waiver of Water Quality Certification; California River Community Seeks State Action on Certification Waivers
On May 21, 2020, FERC issued the latest in a series of orders finding that a state—California, in this case—waived its authority to issue water quality certification pursuant to section 401 of the Clean Water Act (CWA) for the Yuba County Water Agency’s (YCWA) Yuba River Development Project, a FERC-licensed hydroelectric project in northern California.
FERC Approves Additional Early Action Investments to Support Longer License Term on Relicensing
On May 26, 2020, FERC staff issued an order determining that additional information provided by the South Carolina Public Service Authority (Santee Cooper) was sufficient for FERC to determine that certain investments made over the term of the existing license for the Santee Cooper Project (FERC No. 199) satisfied the criteria under section 36(b) of the Federal Power Act (FPA), and should be considered when the Commission establishes the length of the next license term for the Project.
FCC Approves Unlicensed Use of Airwaves Used in Utility Operations
On April 23, 2020 the Federal Communications Commission (“FCC”) issued a Report and Order adopting rules to make 1,200 megahertz of spectrum in the 6 GHz band—a band of airwaves used for communications in the operation of electric, oil, natural gas, and water companies—also available for unlicensed use by Wi-Fi and Bluetooth-connected consumer products. The FCC stated that expanding unlicensed broadband operations would provide opportunity for innovation and improve broadband speed and connectivity. The FCC also adopted an Automated Frequency Coordination (“AFC”) system to prevent unlicensed use from interfering with incumbent users including utilities. The Report and Order follows a December 2019 letter from FERC Chairman Neil Chatterjee and Commissioners Richard Glick and Bernard McNamee to FCC Chairman Ajit Pai, urging the FCC to consider additional testing of the AFC system to guarantee that unlicensed devices do not interfere with incumbent users.
Stakeholders Request FERC Technical Conference on Carbon Pricing
On April 13, 2020, numerous industry groups and business associations (“Industry Stakeholders”) submitted a joint request asking FERC to organize a technical conference or workshop to discuss potential issues with the implementation of state, regional, and national carbon pricing in regions with organized wholesale electric energy markets. The Industry Stakeholders proposed that the workshop examine both the mechanics needed to account for the implementation of carbon pricing as well as the mechanics that are already in place. Industry Stakeholders stated that such a conference could open a dialogue among stakeholders and interested parties regarding the opportunities and potential difficulties presented by carbon pricing.
FERC Issues Two Orders Finding Waiver of Water Quality Certification
On Thursday, April 16, 2020, FERC issued two orders concerning section 401 of the Clean Water Act (“CWA”) and state agencies’ waiver of their right to issue certifications for FERC-licensed hydroelectric projects. In an order responding to a request from the Nevada Irrigation District (“NID”), the Commission determined that the California State Water Resources Control Board (“California Board” or “Board”) waived its authority to issue water quality certification under section 401. In a second order, FERC denied requests for rehearing and a stay of a September 20, 2019 order issuing an original license to McMahan Hydroelectric, LLC (“McMahan”) for the Bynum Project in North Carolina and holding that the North Carolina Department of Environmental Quality (“North Carolina DEQ”) waived its authority to issue water quality certification under section 401.
FERC Establishes Hearing to Determine PJM Capacity Values; Holds Hearing in Abeyance Until October 2020
On April 10, 2020, FERC consolidated two separate dockets resulting from PJM Interconnection, L.L.C.’s (“PJM”) Order No. 841 compliance proceeding, and established paper hearing procedures to examine PJM’s methodology for calculating capacity values—not just for Electric Storage Resources (“ESRs”) participating in its capacity markets, but for all resource types, including run-of-river hydroelectric resources with and without reservoir storage capability. However, FERC held the proceedings in abeyance through October 30, 2020 to permit PJM and its stakeholders time to consider replacing the current capacity value calculation methodology with a new, Effective Load Carrying Capability (“ELCC”) approach. FERC concluded that the October 30 deadline would provide sufficient time to consider the new approach, while also allowing for new rules to become effective in advance of PJM’s next capacity auction. Commissioner Richard Glick issued partial dissent, explaining that he would have held the proceedings in abeyance until January 29, 2021.