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 Here, the court emphasized that when the Maryland Department of Environment (“Department”) rescinded its water quality certification for the project subject to a settlement agreement, the recission did not constitute a waiver, and thus FERC did not have the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 3, 2023, President Joe Biden named Willie Phillips acting chairman of FERC. Chairman Phillips first joined the Commission in December 2021 after being nominated by President Biden and confirmed by the Senate. His term expires June 30, 2026.

Continue Reading Biden Names Willie Phillips Acting Chairman of FERC

On December 30, 2022, the U.S. Court of Appeals for the 9th Circuit (“9th Circuit”) affirmed a lower court’s denial of the Sauk-Suiattle Indian Tribe’s (“Tribe”) motion to remand to state court and its dismissal of the Tribe’s action against the City of Seattle (“City”) for lack of subject matter jurisdiction.  The case concerns Gorge Dam, which is located on the Skagit River in Washington and is one of three dams that make up the City’s Skagit River Hydroelectric Project (“Skagit River Project” or “Project”).

Continue Reading U.S. Court of Appeals for the 9th Circuit Affirms Lower Court’s Dismissal of Tribe’s Case Against City of Seattle

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 January 19, 2023, FERC established that a facility’s classification as transmission or distribution under criteria established in the Southwest Power Pool, Inc.’s (“SPP”) Open Access Transmission Tariff (“Tariff”) can be overcome in a challenge at the Commission if the protestors provide sufficient evidence to call into question the classification under the Tariff criteria. FERC found that once protestors present evidence that the facilities are distribution under FERC’s seven-factor test, the burden of proof shifts back to the filing transmission provider and transmission owner seeking a specific classification under Section 205 of the Federal Power Act to demonstrate its proposed classification under FERC’s seven-factor test. FERC found that GridLiance High Plains, LLC (“GridLiance”), as the applicable transmission owner, failed to carry this burden to demonstrate its facilities at issue were transmission facilities after such a challenge.

Continue Reading FERC Affirms Burden of Persuasion Rests on Proponents of Transmission Asset Classifications under FERC’s Seven-Factor Test, Notwithstanding Tariff Classifications

On January 19, 2023, FERC issued an order upholding its decision to exercise primary jurisdiction over emergency energy sales between Southwest Power Pool, Inc. (“SPP”) and Associated Electric Cooperative, Inc. (“AECI”) during Winter Storm Uri and FERC’s decision that SPP properly compensated AECI pursuant to its Open Access Transmission Tariff (“Tariff”).

Continue Reading On Rehearing, FERC Upholds Jurisdiction over AECI Emergency Energy Transactions in SPP Market During Winter Storm Uri

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