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Morgan Gerard

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Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

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On February 8, the U.S. Department of Energy (DOE) released draft guidance (Draft Guidance) on the Infrastructure Investment and Jobs Act (Act) (known as the Bipartisan Infrastructure Law) Section 247 incentive, one of the key hydroelectric provisions  offered by the legislative package. The Act, which President Biden signed in November 2021, provides $553.6 million in total funding to the Section 247 program for “capital improvement” projects that maintain and enhance existing hydroelectric facilities to ensure generators continue to provide clean electricity, while integrating renewable energy resources such as wind and solar, improving dam safety, and reducing environmental impacts. The Draft Guidance focuses on the Section 247 application process and how DOE will rate and select incentive recipients.  DOE will accept comments on the Draft Guidance until February 28th, which provides hydropower licensees an opportunity to help shape the final guidance, and alert DOE to any potential obstacles that could prevent licensees from successfully participating in the Section 247 program.Continue Reading DOE Releases Awaited Draft Guidance for Bipartisan Infrastructure Law Hydropower Incentive

In December 2022, several federal agencies announced awards and recommendations for Bipartisan Infrastructure Law (BIL) funding. The BIL represents a core piece of President Biden’s agenda and provides significant funding for infrastructure improvements in energy and water, including over $900 million in waterpower incentives for new and existing hydropower, pumped storage, and marine energy. Funding is also provided to incentivize research, development, demonstration, and commercial application (R&D) efforts in the water power industry for technologies that improve capacity, efficiency, resilience, security, reliability, affordability, and environmental impact.Continue Reading Funding Begins for Hydropower Research and Development and Fish Passage

On August 5, the U.S. Court of Appeals for the Ninth Circuit overruled several orders by the Federal Energy Regulatory Commission (FERC) and held that the California State Water Resources Control Board (SWRCB) did not waive its authority to issue water quality certifications for several hydroelectric projects. Before the court in SWRCB v. FERC, No. 20-72432, were several orders on appeal from FERC where the Commission found that SWRCB had participated in a coordinated “withdrawal-and-resubmission” scheme to evade the Clean Water Act (CWA) Section 401 one-year statutory time limit on a state’s review of a certification application.
Continue Reading Ninth Circuit Finds No Waiver of State Water Board Authority

On April 15, 2022, the Federal Energy Regulatory Commission (FERC) issued an Equity Action Plan (EAP) that introduces a two-year overhaul to review its policies to better promote equity and remove barriers to environmental justice communities.  In particular, for hydropower projects, the EAP will focus on:  (1) building and staffing its new Office of Public Participation, (2) strengthening Tribal government consultation and engagement policies and processes, (3) reviewing key regulations within the hydropower project licensing process, and (4) implementing equity readiness for staff to understand the EAP mission.
Continue Reading FERC Equity Action Plan and Hydropower Licensing

On November 5th, the U.S. House of Representatives passed the more than $1.2 trillion Infrastructure Investment and Jobs Act, also known as the bipartisan infrastructure framework (BIF).  The Senate had already approved the bill back in August, and it now heads to the President’s desk for signature.  The BIF represents a core piece of President Biden’s agenda and provides significant funding for infrastructure improvements in energy and water, including over $900M in waterpower incentives for new and existing hydropower, pumped storage, and marine energy.  Additional spending is provided for dam safety and removal.
Continue Reading Infrastructure Bill Provides Opportunities for Hydroelectric Industry

In 2019, the D.C. Circuit in Hoopa Valley Tribe v. FERC  held that the plain language of Clean Water Act (CWA) Section 401 establishes a bright-line maximum period of one year for States to act on a request for water quality certification and that the Federal Energy Regulatory Commission (Commission) was arbitrary and capricious when it failed to enforce the statutory time-limit.  Since the Hoopa Valley Tribe ruling, the Commission has repeatedly held that a State waives its authority under Section 401 when it has sought to extend the one year review period by requesting or directing the applicant to withdraw and resubmit its application to afford the state reviewing agency more time.  In several recent cases, however, the Commission has found that there may be instances where a withdrawal and resubmission of a water quality certification by the applicant does not result in a State’s waiver of Section 401 certification authority.
Continue Reading FERC’s Clean Water Action Section 401 Waiver Analysis Continues to Evolve

At the June 18, 2020 and July 16, 2020 Commissioner meetings, FERC issued a combined five orders continuing its trend of finding that a state has waived its Clean Water Act (“CWA”) section 401 authority for failing to issue a water quality certification within one year from receiving the request for certification.  Since the D.C. Circuit’s 2019 ruling in Hoopa Valley Tribe v. FERC (see December 11, 2019 edition of the WER), which held that the plain language of section 401 limited a state’s review to one year, the Commission has consistently found state waiver when the time period has been exceeded under a variety of circumstances.  Below is a summary of FERC’s recent orders finding that a state certifying authority waived its section 401 authority.
Continue Reading FERC Continues Trend Finding State Water Quality Certification Waiver