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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

As the California Legislature prepares its 2021 budget and continues to address the impacts of COVID-19, the Subcommittee 2 on Resources, Environmental Protection, Energy and Transportation (Subcommittee) proposed language in a trailer bill related to the State Water Resources Control Board’s (Water Board) authority to issue water quality certifications under section 401 of the Clean Water Act (CWA) for federally licensed and permitted activities.  If enacted, the bill purportedly would authorize the Water Board to meet the one-year action requirement under CWA section 401 by issuing a water quality certification—even if California Environmental Quality Act (CEQA) requirements are not met.  Further, the bill seeks to authorize the Water Board to make any changes to conditions in the water quality certification at a later date after CEQA requirements are met.
Continue Reading Legislative Proposal in California Seeks to Avoid Waiver for Water Quality Certifications Under Section 401 of the Clean Water Act

On April 27, 2020, the Department of Energy’s (DOE) Water Power Technologies Office (WPTO) released a Request for Information (RFI) to gather information and feedback from hydropower industry stakeholders on its Hydropower Program Research and Development (R&D) Strategy and Hydro and Water Innovation for a Resilient Electricity System (HydroWIRES) Research Roadmap.
Continue Reading The Department of Energy’s Water Power Technologies Office Releases Request for Information on Hydropower Program

On May 21, 2020, FERC issued the latest in a series of orders finding that a state—California, in this case—waived its authority to issue water quality certification pursuant to section 401 of the Clean Water Act (CWA) for the Yuba County Water Agency’s (YCWA) Yuba River Development Project, a FERC-licensed hydroelectric project in northern California.
Continue Reading FERC Issues Order Finding Waiver of Water Quality Certification; California River Community Seeks State Action on Certification Waivers

On May 26, 2020, FERC staff issued an order determining that additional information provided by the South Carolina Public Service Authority (Santee Cooper) was sufficient for FERC to determine that certain investments made over the term of the existing license for the Santee Cooper Project (FERC No. 199) satisfied the criteria under section 36(b) of the Federal Power Act (FPA), and should be considered when the Commission establishes the length of the next license term for the Project.
Continue Reading FERC Approves Additional Early Action Investments to Support Longer License Term on Relicensing

On Thursday, April 16, 2020, FERC issued two orders concerning section 401 of the Clean Water Act (“CWA”) and state agencies’ waiver of their right to issue certifications for FERC-licensed hydroelectric projects.  In an order responding to a request from the Nevada Irrigation District (“NID”), the Commission determined that the California State Water Resources Control Board (“California Board” or “Board”) waived its authority to issue water quality certification under section 401.  In a second order, FERC denied requests for rehearing and a stay of a September 20, 2019 order issuing an original license to McMahan Hydroelectric, LLC (“McMahan”) for the Bynum Project in North Carolina and holding that the North Carolina Department of Environmental Quality (“North Carolina DEQ”) waived its authority to issue water quality certification under section 401.
Continue Reading FERC Issues Two Orders Finding Waiver of Water Quality Certification

On April 10, 2020, FERC consolidated two separate dockets resulting from PJM Interconnection, L.L.C.’s (“PJM”) Order No. 841 compliance proceeding, and established paper hearing procedures to examine PJM’s methodology for calculating capacity values—not just for Electric Storage Resources (“ESRs”) participating in its capacity markets, but for all resource types, including run-of-river hydroelectric resources with and without reservoir storage capability. However, FERC held the proceedings in abeyance through October 30, 2020 to permit PJM and its stakeholders time to consider replacing the current capacity value calculation methodology with a new, Effective Load Carrying Capability (“ELCC”) approach. FERC concluded that the October 30 deadline would provide sufficient time to consider the new approach, while also allowing for new rules to become effective in advance of PJM’s next capacity auction. Commissioner Richard Glick issued partial dissent, explaining that he would have held the proceedings in abeyance until January 29, 2021.
Continue Reading FERC Establishes Hearing to Determine PJM Capacity Values; Holds Hearing in Abeyance Until October 2020

On February 20, 2020, FERC staff issued a letter to the licensee for the FERC-licensed Anderson Dam Project (“Project”), directing the licensee to immediately initiate a full drawdown of the Project’s reservoir by October 1, 2020. The Project is located south of San Francisco and serves as an important water supply resource, but has long been identified as vulnerable to flooding and seismic events that could result in the catastrophic spilling of floodwaters into Silicon Valley.  As such, the licensee has been operating the Project at a restricted reservoir level (as low as 58% of capacity in 2020) to mitigate flooding and seismic risks.
Continue Reading FERC Requires that Anderson Dam Drain Reservoir

On March 19, 2020, FERC granted Pacific Gas and Electric Company’s (“PG&E”), licensee for the Kilarc-Cow Creek Hydroelectric, Project No. 606 (“Project”), request for a Declaratory Order finding that the California State Water Resources Control Board (“California Board”) waived its authority to issue a water quality certification under section 401 of the Clean Water Act.  FERC’s recent opinion continues its application of the D.C. Circuit’s opinion in Hoopa Valley Tribe (see December 11, 2019 edition of the WER), which held that section 401 provides one year as the absolute maximum for a state to act on a water quality certification application and rejected an extension of the statutory deadline via a coordinated withdrawal-and-resubmission scheme between an applicant and the state certifying agency.
Continue Reading Federal Energy Regulatory Commission Continues to Apply D.C. Circuit Ruling