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

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.
Continue Reading FERC Includes Financial Assurance Requirement in Recent Licensing Orders

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.
Continue Reading Seattle City Light Faces Lawsuits During Skagit Relicensing

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.
Continue Reading Senators Murkowski and Cantwell Introduce Bipartisan Hydropower Legislation

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.
Continue Reading Denver Water Files Complaint in Federal Court, Seeking Preemption of Boulder County Regulation Due to FERC Hydroelectric Project License

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.
Continue Reading FERC Revises Filing Requirements for Certain Small Hydroelectric Facilities

In an order dated May 20, 2021, the Federal Energy Regulatory Commission (FERC, or the Commission) terminated the hydropower licenses for three projects located on the Tittabawasee River in Michigan—the Secord (P-10809), Smallwood (P-10810) and Sanford (P-2785) dams.  The termination by implied surrender follows a May 2020 breach at the Sanford dam and the breach

On December 27, 2020, President Trump signed the Consolidated Appropriations Act of 2021, which includes a $1.4 trillion omnibus spending bill for fiscal year (FY) 2021 along with $900 billion in COVID-19 stimulus relief.  The Act includes a variety of measures to promote clean energy and climate policy, as well as several hydropower-related provisions.
Continue Reading Hydropower Provisions Included in 2021 Appropriations Bill

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