On March 5, 2020, the United States Senate approved a motion to proceed on the American Energy Innovation Act (“AEIA”), S. 2657, after a cloture vote was called on the motion by Senate Majority Leader Mitch McConnell (R-Ky.) in order to move the bill to the Senate floor. However, on March 9, 2020, at least two measures to limit debate on the bill itself were rejected—opening the door for numerous floor amendments, including legislative language to limit greenhouse gas emissions that is projected to be offered by Senate Democrats.

The AEIA is a compendium of energy-related statutory provisions which was released in an omnibus, bipartisan legislative package on February 27, 2020 by Energy and Natural Resources Committee Chair Senator Lisa Murkowski (R-Alaska) and Ranking Member Senator Joe Manchin (D-W. Va.). Senators Murkowski and Manchin offered a substitute amendment featuring the full text of the AEIA (Amendment 1407) after the motion to proceed was voted-out affirmatively, and they are acting as floor managers for the bill.

Among other things, the bill focuses on advancements and development of energy storage and hydropower resources. In particular, as described in greater detail below, the bill directs FERC to initiate a rulemaking on cost recovery for energy storage assets and extends authorization for certain incentives to develop generation at non-powered or already-powered dams. The Committee held approximately 12 months of hearings on many of the proposed legislation’s components. If enacted, the bill would constitute the first major piece of national energy legislation since the Energy Policy Act of 2005, after a twelve-year hiatus in significant congressional activity.
Continue Reading Bipartisan American Energy Innovation Act Being Considered on Floor of U.S. Senate

On Monday, March 2, FERC staff issued three virtually identical orders extending the license terms for 20 hydroelectric projects along the Wisconsin River that have licenses set to expire between 2026 and 2035, to align their license expiration dates and better coordinate the FERC relicensing process.  The three orders each address licenses for projects located in certain sub-basins of the Wisconsin River: the northern sub-basin, which includes eight projects; the central sub-basin, which includes 10 projects, and the southern sub-basin, which includes two projects.
Continue Reading FERC Grants Extension of Hydropower License Terms

On Tuesday, January 28, Democratic leadership from the House Energy and Commerce Committee, and Environment and Climate Change and Energy Subcommittees released legislative text of the draft “Climate Leadership and Environmental Action for our Nation’s (“CLEAN”) Future Act, which aims for the United States to achieve a “100 percent clean economy” no later than 2050.
Continue Reading House Energy and Commerce Committee’s Draft “CLEAN Future Act” Includes Hydropower Provisions

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.  The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (“FERC”) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.
Continue Reading Supreme Court Declines to Hear Clean Water Act Section 401 Case

On December 3, 2019, FERC issued an order in response to South Carolina Public Service Authority’s (“SCPSA”) October 8, 2019 request for a determination under section 36(c) of the Federal Power Act (“FPA”) that certain project investments made over the term of the existing license for the Santee Cooper Project meet the criteria set forth in FPA section 36(b)(2), and therefore should be considered when the Commission establishes the length of the next license term for the Project.  The Commission’s December 3 order held that most of the prior investments identified in SCPSA’s request—approximately $90 million—met the statutory criteria and will be considered when the Commission sets the new license term in its future order on relicensing. 
Continue Reading FERC Issues Order on Early Action Investments

On October 17, 2019, FERC denied requests for rehearing filed by the California State Water Resources Control Board (“SWRCB”) and conservation organizations in response to the Commission’s unanimous April 18, 2019 order finding that SWRCB had waived its authority under section 401(a)(1) of the Clean Water Act (“CWA”), 33 U.S.C. § 1641, to issue a water quality certification for the relicensing of Placer County Water Agency’s Middle Fork American River Hydroelectric Project (“Middle Fork Project”) (see April 24, 2019 edition of the WER).
Continue Reading FERC Denies Rehearing of Order Finding that California Waived Clean Water Act Authority

On October 17, 2019, FERC amended its Policy Statement on Consultation with Indian Tribes in Commission Proceedings (“Policy Statement”) by adding a specific reference to treaty rights, noting that the Commission addresses input from tribes in its National Environmental Policy Act (“NEPA”) documents, and adding consultation with Alaska Native Corporations to the Policy Statement.
Continue Reading FERC Revises Policy Statement on Tribal Consultation

On October 17, 2019, pursuant to the America’s Water Infrastructure Act (AWIA) of 2018, FERC issued a guidance document for applicants seeking preliminary permits or licenses for closed-loop pumped storage projects at abandoned mine sites.  It also issued a list of 230 existing nonpowered federal dams that FERC—along with the Secretaries of the Interior, Army, and Agriculture (collectively, the Secretaries)—determined have the greatest potential for nonfederal hydropower development.
Continue Reading FERC Issues Guidance for Closed-Loop Pumped Storage Projects at Abandoned Mines and List of Nonpowered Dams with Potential for Non-Federal Hydroelectric Development

On September 30, 2019, FERC accepted in part and rejected in part, the California Independent System Operator’s (“CAISO”) July 2, 2019 proposed revisions (“July 2 Filing”)  to its open access transmission tariff (“Tariff”) to include three unrelated mitigation measures designed to facilitate the participation of fast-ramping hydroelectric resources in the western energy imbalance market (“EIM”). FERC accepted two aspects of CAISO’s proposal related to the mitigation timing (the “Mitigation Timing” proposal and a hydro default energy bid (“DEB”) proposal, referred to as the “Hydro DEB” proposal), but rejected CAISO’s proposal to allow an EIM entity balancing authority area (“BAA”) in the real-time market to limit dispatch of incremental net exports under certain conditions (the “Net Export Limit” proposal).
Continue Reading FERC Accepts in Part and Rejects in Part CAISO’s Proposal to Modify Its Open Access Transmission Tariff to Accommodate Hydroelectric Resources

On September 20, 2019, FERC issued an original license to McMahan Hydroelectric, LLC (“McMahan”) for the 600-kilowatt Bynum Hydroelectric Project, located on the Haw River in Chatham County, North Carolina. In its licensing order, FERC held that North Carolina waived authority under section 401 of the Clean Water Act (“CWA”) by failing to act within one year of receiving McMahan’s request for water quality certification under section 401. In a separate statement, Commissioner Glick—while agreeing with the conclusion that North Carolina had waived section 401 authority—dissented in the Commission’s rationale for finding waiver.
Continue Reading Commissioner Glick Dissents in Rationale for Finding Waiver of Water Quality Certification in FERC Order Issuing Hydropower License