On January 18, 2019, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition by the State of North Carolina to review two FERC orders involving the relicensing of the Yadkin River Hydroelectric Project (“Yadkin Project”) in North Carolina. The D.C. Circuit found substantial evidence supporting FERC’s decision to deny North Carolina’s allegations of misrepresentation by Alcoa Power Generating, Inc. (“Alcoa”), the license applicant, and to grant a new operating license to Alcoa for the Yadkin Project. The court also rejected North Carolina’s proposal to invoke the federal recapture provision of the Federal Power Act (“FPA”) to the state at Alcoa’s net investment plus severance damages.
District Court Rules FERC Enforcement Claim Not Barred by Statute of Limitations
On January 4, 2019, the U.S. District Court for the District of Maine (“Maine District Court”) issued an order on two motions for summary judgment concluding that FERC’s assessment of a civil penalty against Competitive Energy Services, LLC (“CES”) and its managing member, Richard Silkman (collectively, “Respondents”) was not time-barred by the statute of limitations under 28 U.S.C. § 2462. In doing so, the Maine District Court denied the Respondents’ motion for summary judgment.
FERC Eliminates Form 80 for Hydroelectric Projects
On December 18, 2018, FERC eliminated the requirement for hydroelectric project licensees to file Form 80, which solicited information on the use and development of recreation facilities at FERC-licensed hydropower projects. FERC also revised Sections 8.1 and 8.2 of its regulations to (1) modernize licensee public notice practice, (2) clarify recreational signage requirements, and (3) provide flexibility to assist licensees’ compliance with these requirements. The Final Rule will go into effect 90 days after it is published in the Federal Register.
FERC Releases Oroville Spillway After Action Report
On November 23, 2018, the FERC After Action Panel (“FAAP”) issued a report (“FAAP Report”) providing an evaluation of the causes and recommendations to FERC after a spillway failure that took place at the Oroville Dam in February 2017. According to the FAAP Report, issues with the Oroville Dam spillways have been ongoing since the project was commissioned in 1967, and there are shortcomings related to the implementation of FERC’s Part 12 dam safety regulations. In light of its assessment, the FAAP provided FERC with recommendations for improvement of the Part 12 program.
Bernard McNamee Seated as FERC Commissioner
On December 6, 2018, the United States Senate confirmed Bernard L. McNamee as a FERC Commissioner. President Donald Trump nominated McNamee to fill the vacancy left by Commissioner Robert Powelson following Powelson’s August 2018 resignation from FERC to become president and CEO of the National Association of Water Companies (see October 9, 2018 edition of the WER). McNamee was sworn in on December 11, 2018, returning FERC to its full five-member complement.
States Chime in During D.C. Circuit Review of FERC Pipeline Permitting Policy
On December 3, 2018, several states filed an amicus brief urging the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) to vacate an order issued by FERC that announced a shift in policy limiting the Commission’s review of greenhouse gas impacts during pipeline permitting.
FERC Declines to Require New CAISO Capacity Market
On November 19, 2018, FERC denied a complaint filed by CXA La Paloma, LLC (“La Paloma”) requesting that FERC use its jurisdiction over resource adequacy to direct the California Independent System Operator Corp. (“CAISO”) to implement centralized capacity procurement. FERC found that La Paloma failed to meet its burden to demonstrate that CAISO’s tariff was unjust, unreasonable, or unduly discriminatory or preferential under section 206 of the Federal Power Act.
FERC Partially Grants CAISO Waiver of Aliso Canyon Related Tariff Provisions
On November 26, 2018, FERC partially granted the California Independent System Operator Corp. (“CAISO”) a temporary extension of two sets of tariff provisions concerning natural gas system limitations on CAISO’s system and corresponding market operations. While FERC temporarily extended six tariff provisions related to the Aliso Canyon gas storage facility (“Aliso Canyon”) effective November 30, 2018, and December 16, 2018, as requested, it rejected CAISO’s proposal to temporarily extend the tariff revisions regarding gas price scalars.
FERC Issues NOPR Implementing Changes to FPA Section 203
On November 15, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to implement Public Law No. 115-247, which amended section 203 of the Federal Power Act (“FPA”) to clarify that FERC authorization is only required for mergers or consolidations valued at more than $10 million. In addition, in accordance with the new law’s requirements, FERC proposes that transactions that are valued at $10 million or less, but more than $1 million, would only be subject to a notification requirement.
FERC Establishes Schedule for Implementing AWIA Requirements
On November 13, 2018, FERC issued a notice providing a schedule for implementing S. 3021, the America’s Water Infrastructure Act of 2018 (“AWIA”).