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On February 16, 2023, FERC addressed arguments raised on rehearing of its August 31, 2022, order accepting Midcontinent Independent System Operator, Inc.’s (“MISO”) proposal to establish a seasonal resource adequacy construct with availability-based resource accreditation (“August 2022 Order”). In doing so, FERC continued to find that MISO’s proposed transition from an annual planning resource auction to an independent auction to meet seasonal requirements is just and reasonable.…

Continue Reading On Rehearing, FERC Accepts MISO’s Seasonal Resource Adequacy Construct

On January 27, 2023, FERC approved the Midcontinent Independent System Operator, Inc. (“MISO”) Transmission Owners’ (“TOs”) proposal to terminate reactive power charges and compensation under MISO’s Open Access Transmission, Energy, and Operating Reserve Markets Tariff (“Tariff”), effective December 1, 2022.  As a result, MISO will no longer charge transmission customers for reactive power service within the standard power range, and no generators, whether affiliated with the MISO TOs or not, will receive compensation for providing reactive power service within the standard power factor range.  Nevertheless, FERC’s determination does not affect MISO generators’ ongoing obligation to provide reactive power.  If MISO directs a generator to provide reactive power outside of the standard power factor range, the generator will be compensated based on existing mechanisms already included in MISO’s Tariff.  …

Continue Reading FERC Allows MISO Transmission Owners to Retroactively Terminate Reactive Power Compensation Back to December 2022

On October 6, the Fourteenth Court of Appeals of Houston, Texas issued an opinion in San Jacinto River Authority v. Gonzalez, et al., a case involving claims by 85 residents against the San Jacinto River Authority (“Authority”), the governmental entity that maintains Lake Conroe and the Lake Conroe Dam, for releasing water from Lake Conroe and allegedly flooding their homes. The court found that the residents failed to prove causation because residents’ homes would have flooded even if the Authority had not released any water.…

Continue Reading Texas Court Finds Lack of Causation in Takings Case Arising from Spills at Texas Dam During Hurricane Harvey

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.…

Continue Reading DOE Announces $28 Million Funding to Support Hydroelectric Programs

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. …

Continue Reading D.C. Circuit Vacates FERC Order Approving the Conowingo Dam’s Federal License Renewal

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.…

Continue Reading FERC Directs NERC to Develop Internal Network Security Monitoring for High and Medium Impact Bulk Electric System Cyber Systems

On December 15, 2022, FERC issued an order accepting Arizona Public Service Company’s (“APS”) revisions to its Open Access Transmission Tariff (“Tariff”) that would allow APS to begin using the Flowgate Methodology for calculating Available Transfer Capability (“ATC”) instead of its current Rated System Path Methodology. In addition, FERC denied APS’s request to waive the requirement to post its Total Transfer Capability (“TTC”) values on the Open Access Same Time Information System (“OASIS”).…

Continue Reading FERC Accepts Arizona Public Service Company’s Proposal to Adopt Flowgate ATC Methodology and Denies Its Request to Waive TTC Posting Requirements

On November 29, 2022, FERC conditionally accepted PJM Interconnection, L.L.C.’s (“PJM”) tariff revisions to transition from a serial first-come, first-served generator interconnection queue process to a first-ready, first-served clustered cycle approach. FERC found that the revisions will help reduce interconnection queue backlogs and delays.…

Continue Reading FERC Conditionally Accepts PJM Interconnection Reforms for a First-Ready, First-Served Clustered Cycle Approach

On November 17, 2022, FERC granted a petition for declaratory order (“Petition”) filed by Ameresco, Inc. (“Ameresco”) and its subsidiaries (collectively with Ameresco, “the Ameresco Companies”) requesting exemption from certain “books and records” requirements under the Commission’s Public Utility Holding Company Act of 2005 (“PUHCA”) regulations because its ownership of certain grid-charged battery storage subsidiaries might otherwise have caused Ameresco to lose its automatic “books and records” exemption under PUHCA. FERC granted the Petition, notwithstanding the fact that some of the storage subsidiaries would not otherwise qualify for the non-traditional utility “books and records” exemption, because the “Ameresco Companies’ books, accounts, memoranda, and other records are not relevant to the jurisdictional rates of Ameresco Companies.”…

Continue Reading FERC Finds PUHCA Exemptions Appropriate for Holding Company Ownership of Grid-Charging Storage Facilities Selling at Retail