On October 21, 2022, the U.S. Department of Energy (“DOE”) announced three new funding opportunities to support research and development projects for hydropower infrastructure in the United States. The funding totals $28 million and is part of the Bipartisan Infrastructure Law’s efforts to advance hydropower as a clean energy source. DOE explains that the funding will support the expansion of: (1) “low-impact hydropower,” such as retrofits for dams that do not currently produce power and existing pumped storage hydropower facilities, (2) the development of new pumped storage hydropower facilities, and (3) engagement with “key voices” on issues including fleet modernization, sustainability, and environmental impacts.
D.C. Circuit Vacates FERC Order Approving the Conowingo Dam’s Federal License Renewal
On December 20, 2022, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Waterkeepers Chesapeake, et al. v. FERC vacated a FERC order approving the relicensing of the Conowingo Dam because FERC did not have the authority to issue the license under section 401 of the Clean Water Act (“CWA”). Specifically, the court found that FERC may only issue a license if the state issues a water quality certification for the dam or waives its right to do so. Here, the court emphasized that when the Maryland Department of Environment (“Department”) rescinded its water quality certification for the project subject to a settlement agreement, the recission did not constitute a waiver, and thus FERC did not have the authority to issue the dam’s new license under the act.
Biden Names Willie Phillips Acting Chairman of FERC
On January 3, 2023, President Joe Biden named Willie Phillips acting chairman of FERC. Chairman Phillips first joined the Commission in December 2021 after being nominated by President Biden and confirmed by the Senate. His term expires June 30, 2026.
U.S. Court of Appeals for the 9th Circuit Affirms Lower Court’s Dismissal of Tribe’s Case Against City of Seattle
On December 30, 2022, the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) affirmed a lower court’s denial of the Sauk-Suiattle Indian Tribe’s (“Tribe”) motion to remand to state court and its dismissal of the Tribe’s action against the City of Seattle (“City”) for lack of subject matter jurisdiction. The case concerns Gorge Dam, which is located on the Skagit River in Washington and is one of three dams that make up the City’s Skagit River Hydroelectric Project (“Skagit River Project” or “Project”).
FERC Directs NERC to Develop Internal Network Security Monitoring for High and Medium Impact Bulk Electric System Cyber Systems
On January 19, 2023, the Commission issued a final rule that directs the North American Electric Reliability Corporation (“NERC”) to develop and submit reliability standards for monitoring high and medium impact bulk electric systems with high-speed internet connections. The Commission stated that the new reliability standards would assist entities in monitoring network traffic inside the bulk electric systems and detecting unauthorized activity inside those systems.
FERC Issues Proposed Rule Implementing FPA Amendments in Infrastructure Investment and Jobs Act
On December 15, 2022, FERC issued a Notice of Proposed Rulemaking (“NOPR”) seeking to revise its regulations governing applications for permits to site electric transmission facilities under § 216 of the Federal Power Act (“FPA”). Specifically, the NOPR seeks to: (1) revise Section 50.6 of FERC’s regulations to reflect the Infrastructure Investment and Jobs Act’s (“IIJA”) amendments to the FPA § 216; (2) eliminate the required one-year delay before the commencement of FERC’s pre-filing process; (3) supplement the existing landowner and stakeholder participation provisions in Part 50 of its regulations; and (4) revise the timing of the required Project Participation Plan (“Plan”) in the pre-filing application process.
FERC Accepts CAISO Proposal to Correct Payment Overcollections by Storage Resources
On November 18, 2022, FERC accepted a September 19, 2022 proposal from the California Independent System Operator (“CAISO”) to correct “excessively high” payments being made to electric storage resources that are forced to discharge to meet state of charge requirements when providing ancillary services. The proposal also aims to encourage those resources to reflect opportunity costs through their ancillary services bids rather than energy bids.
FERC Issues Proposals Regarding Inverter-Based Resources to Improve Grid Reliability
On November 17, 2022, FERC issued three orders intended to address the reliability impacts of the rapid integration of inverter-based resources (“IBRs”), including solar, wind, fuel cell, and battery storage resources, on the Bulk-Power System (“BPS”). Specifically, in the first proceeding, FERC directed the North American Electric Reliability Corporation (“NERC”) to develop a plan to register the entities that own and operate IBRs so that NERC may monitor their compliance with NERC’s Reliability Standards. In the second proceeding, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to direct NERC to develop new or modified Reliability Standards that address reliability gaps related to IBRs. Lastly, in the final proceeding, FERC approved revisions to two of NERC’s Reliability Standards.
FERC Declines to Act on California Rooftop Solar PURPA Petition
On October 25, 2022, FERC declined to act on a petition for enforcement against California’s rules for solar installations implemented pursuant to the Public Utility Regulatory Policies Act (“PURPA”). As a result, ongoing federal litigation against the California rules will continue.
FERC Elaborates on How Board Membership Impacts “Affiliation” Determination Under FERC’s Rules
On October 20, 2022, FERC issued orders in two separate proceedings that clarified how investor company appointments to public utility boards of directors can trigger additional FERC regulatory scrutiny. Specifically, in the first proceeding, FERC determined that such appointments established an “affiliate” relationship under FERC’s rules, while in the second proceeding, FERC determined that the appointments effectuated a “change in control” over the public utility that required prior FERC approval under Section 203 of the Federal Power Act (“FPA”).