On September 23, 2021, the Federal Energy Regulatory Commission (FERC), for the first time, issued two orders reserving the right to require future license measures to ensure that licensees have adequate financial reserves “to carry out the terms of the license and Commission orders pertaining thereto.” FERC’s orders follow its January 2021 Notice of Inquiry, in which it solicited public comments on whether and how it should impose financial assurance requirements on hydropower licensees to ensure licensees have sufficient financial resources to maintain their projects in safe condition.
Seattle City Light Faces Lawsuits During Skagit Relicensing
As Seattle City Light proceeds through the FERC relicensing of its Skagit River Hydroelectric Project, it faces two recent lawsuits filed by the Sauk-Suiattle Indian Tribe and one by Skagit County. Two of the suits are related to the Project’s alleged impacts on fish passage, and another alleges that Seattle City Light is misleading the public, or “greenwashing” with respect to its clean energy claims.
FERC and NERC Release Report and Recommendations Regarding 2021 Winter Freeze
On September 23, 2021, the Federal Energy Regulatory Commission (“FERC”) and the North American Electric Reliability Corporation (“NERC”) Staff released their report and recommendations regarding the 2021 Winter Freeze during the September Open Meeting at FERC. In this joint review, Staff reviewed what happened during the freeze, what caused the failure, and outlined various recommendations to prevent similar events in the future.
FERC Denies Cross-Sound Cable Company’s Application for Incentive Rate Treatment to Comply with IROL-CIP Costs
On August 31, 2021, FERC denied Cross-Sound Cable Company, LLC’s (“Cross-Sound Cable”) application for incentive rate treatment to create a regulatory asset to recover costs incurred between 2016 and 2021 to comply with Interconnection Reliability Operating Limits (“IROL”) Critical Infrastructure Protection (“IROL-CIP”) costs under Schedule 17 of the ISO-New England (“ISO-NE”) Tariff.
Senators Murkowski and Cantwell Introduce Bipartisan Hydropower Legislation
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.
Denver Water Files Complaint in Federal Court, Seeking Preemption of Boulder County Regulation Due to FERC Hydroelectric Project License
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.
FERC Revises Filing Requirements for Certain Small Hydroelectric Facilities
On July 15, 2021, the Federal Energy Regulatory Commission (“Commission” or “FERC”) issued a Final Rule amending its regulations pertaining to: (1) the information required to be filed with a notice of intent to construct a qualifying conduit facility and (2) the licensing requirements applicable to major projects up to 10 megawatts (MW). The Final Rule was issued to align the Commission’s regulations with changes to the Federal Power Act (“FPA”) that were made as part of the Hydropower Regulatory Efficiency Act (“HREA”) of 2013.
FERC Clarifies Jurisdiction Under Section 211A
On July 15, 2021, FERC issued a declaratory order clarifying that FPA Section 211A does not grant FERC jurisdiction over an unregulated non-public utility solely as a result of the utility establishing different transmission rates by customer class or contract.
FERC Formally Outlines Office of Public Participation for FERC Proceedings
On June 24, 2021, FERC formally issued a public report that outlined its plan to establish the Office of Public Participation (OPP). The report stated that the OPP’s mission is to assist the public in learning about and participating in FERC proceedings, and that FERC aims to have the OPP at full operating capacity by fiscal year (FY) 2024.
FERC Approves Pipeline Certificates with Last Minute Amendment Caveating GHG NEPA Analysis as “Information Only”
On May 20, 2021, FERC issued two orders in which it authorized two pipeline companies to construct and abandon certain pipeline facilities, subject to conditions. In an exciting and sometimes tense Commission open-meeting, the Commission ultimately approved Northern Natural Gas Company’s (“Northern”) application to construct and operate certain pipeline compression and auxiliary facilities and abandon short segments of existing pipeline (“2021 Expansion Project”) in Minnesota.