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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.
Continue Reading FERC Issues Order Finding Waiver of Water Quality Certification; California River Community Seeks State Action on Certification Waivers

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.
Continue Reading FERC Approves Additional Early Action Investments to Support Longer License Term on Relicensing

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.
Continue Reading FCC Approves Unlicensed Use of Airwaves Used in Utility Operations

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.
Continue Reading Stakeholders Request FERC Technical Conference on Carbon Pricing

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.
Continue Reading FERC Issues Two Orders Finding Waiver of Water Quality Certification

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.
Continue Reading FERC Establishes Hearing to Determine PJM Capacity Values; Holds Hearing in Abeyance Until October 2020

On March 20, 2020, FERC issued an order accepting PJM Interconnection, L.L.C.’s (“PJM”) proposal as part of its Regional Transmission Expansion Plan (“RTEP”) to allow project developers to submit binding cost commitments on a voluntary basis, and to undertake a comparative review and analysis of these commitments in selecting transmission projects. FERC accepted PJM’s proposal over the objections of certain PJM transmission owners, and concluded that the proposal would assist PJM in selecting the most efficient and cost-effective transmission solutions in its RTEP while providing greater transparency into PJM’s evaluation process.
Continue Reading FERC Accepts PJM Plan to Review and Analyze Binding Cost Commitments in its RTEP

On Thursday, March 19, in lieu of its monthly Commission meeting, FERC issued a Notice regarding its response to the Novel Coronavirus Disease (“COVID-19”) and the President’s March 13 declaration of a National Emergency.  Chairman Neil Chatterjee delivered comments about the Notice and the Commission’s operations in the coming weeks and months.
Continue Reading FERC Issues Notice on Commission Operations During COVID-19 Emergency

On March 10, 2020, FERC granted rehearing of its November 9, 2018 order that accepted revisions to ISO New England Inc.’s (“ISO-NE”) Tariff modifying the calculation of the economic life of existing capacity resources seeking to retire or permanently leave the ISO-NE capacity market, to better reflect competitive market behavior. FERC determined the benefits of the Tariff revisions did not outweigh the disruption to capacity market participants’ settled expectations and, therefore rejected the economic life revisions in their entirety, effective August 10, 2018, and declined to rerun any Forward Capacity Auctions (“FCA”) to preserve market certainty.  
Continue Reading FERC Reversal Rejects ISO-NE Proposal for Calculating De-List Bids

On Monday, March 2, FERC staff issued three virtually identical orders extending the license terms for 20 hydroelectric projects along the Wisconsin River that have licenses set to expire between 2026 and 2035, to align their license expiration dates and better coordinate the FERC relicensing process.  The three orders each address licenses for projects located in certain sub-basins of the Wisconsin River: the northern sub-basin, which includes eight projects; the central sub-basin, which includes 10 projects, and the southern sub-basin, which includes two projects.
Continue Reading FERC Grants Extension of Hydropower License Terms