In the two months since the failures of the Edenville Dam and the downstream FERC-licensed Sanford Dam (Project No. 2785) in central Michigan, there has been a flurry of correspondence between the Federal Energy Regulatory Commission (Commission or FERC) and the licensee, including a series of directives and the warning of potential enforcement actions from the Commission, as well as discussion of possible harm to protected species following the dam breaches.
Continue Reading Aftermath of the Michigan Dam Failures: Licensee Delays and Possible ESA Concerns

The Federal Energy Regulatory Commission (Commission or FERC) has proposed to revise its Part 12 dam safety regulations through a Notice of Proposed Rulemaking (NOPR) released at its monthly public meeting on July 14, 2020.  There will be a 60-day public comment period once the proposed regulations are published in the Federal Register.  The proposed revisions contain three major changes to the existing FERC dam safety regulations:
Continue Reading FERC Proposes Overhaul of Dam Safety Regulations

On May 19, 2020, the Edenville dam on the Tittabawassee and Tobacco Rivers in central Michigan was breached during historic flooding.  The downstream FERC-licensed Sanford Dam (Project No. 2785) was later overtopped by the increased flows from the Edenville breach.  Evacuation orders were issued for around 10,000 residents in the area and floodwaters from the dam failures encroached on downtown Midland, Michigan, and a nearby Dow Chemical complex.
Continue Reading Dam Fails at Michigan Project with Revoked FERC License

On February 5, 2019, a copy of a December 13, 2018 policy directive memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works to the U.S. Army Corps of Engineers (“USACE”) Chief of Engineers was released.  Notably, the memorandum directs the USACE to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act (“CWA”) Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.
Continue Reading U.S. Army Corps of Engineers to Tighten Clean Water Act Section 401 Certification Timeframes

On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) released a pre-publication version of a proposal revisiting the cost analysis underlying the Mercury and Air Toxics Standards (“MATS Rule” or “MATS”) for coal- and oil-fired electric generating units (“EGUs”) and conducting the residual risk and technology review required by the Clean Air Act (“Proposal”).  The Proposal would reverse a previous finding, issued by EPA under the Obama Administration, that regulation of hazardous air pollutant (“HAP”) emissions from EGUs under the MATS Rule was “appropriate and necessary” but would nonetheless leave the rule in effect.  The Proposal also concludes that more stringent HAP emission limits are not warranted by the required risk and technology reviews.
Continue Reading EPA Proposes to Find the Mercury and Air Toxics Standards Not Cost Justified