On January 19, 2021, FERC issued a Notice of Inquiry (“NOI”) seeking comments on the appropriate accounting and reporting treatment for certain renewable energy assets and for the purchase, generation and use of renewable energy credits (“REC”). Specifically, FERC requested input on the potential creation of new, non-hydro renewable technology accounts within the Uniform System of Accounts (“USofA”), the potential reporting requirements for such accounts, and how the creation of such accounts may impact formula rates. FERC also asked for comments on whether to codify the accounting treatment of the purchase, generation, and use of RECs. Initial comments are due March 27, 2021, with reply comments due April 26, 2021. Continue Reading FERC Issues Notice of Inquiry on Accounting Treatment of Renewable Energy Assets

On January 21, 2021, President Biden named Richard Glick as the new FERC Chairman. Chairman Glick joined FERC as a Commissioner in 2017. He previously served as general counsel to the Democrats on the Senate Energy and Natural Resources Committee and as Vice President of Government Affairs for Iberdrola’s renewable energy, electric and gas utility, and natural gas storage businesses in the United States.

In a press release, Chairman Glick stated:

“I am honored that President Biden has shown the confidence in me to lead the agency at this critical moment in time. I look forward to continuing working with my fellow commissioners and the exemplary FERC staff to pursue the Commission’s important statutory missions.”

Read FERC’s press release on Chairman Glick’s appointment here.

On January 19, 2021 FERC issued an order on the North American Electric Reliability Corporation’s (“NERC”) compliance filings submitted pursuant to the Commission’s January 2020 order on NERC’s five-year performance assessment. FERC’s January 19 order approved NERC’s proposed modifications to its Rules of Procedure regarding: (1) Electricity Information Sharing and Analysis Center (“E-ISAC”); (2) Sanction Guidelines; and (3) Registration and Certification. FERC also accepted NERC’s description of its Reliability Guidelines process, its explanation on E-ISAC operations, and its explanation of its All Points Bulletins (“APBs”) issuances. However, FERC denied NERC’s proposal to replace its Appendix 4A audit process with an alternative program and directed NERC to submit completed reports on its audits for all six Regional Entities by June 30, 2023. Finally, the order directed NERC to submit an additional compliance filing within 120 days of the order that: (a) clarifies information sharing between NERC and the E-ISAC; and (b) revises its Rules of Procedure to explicitly require NERC to share all APBs with the Commission no later than at the time of issuance.

Separately, FERC issued a Notice of Proposed Rulemaking proposing that NERC submit performance assessments every three years as opposed to every five years. The NOPR requires the assessment to discuss any areas of the ERO’s responsibilities and activities, and proposes formalizing the method for the ERO to receive and respond to regional recommendations for improvement of the ERO’s operations, activities, oversight, and procedures. Comments on the NOPR are due 30 days after publication in the Federal Register.

Click here to read the Order. Click here to read the NOPR.

 

 

 

On January 19, 2021, FERC directed Regional Transmission Organizations (“RTOs”) and Independent System Operators (“ISOs”) to submit informational reports regarding four hybrid resources issues: (1) terminology; (2) interconnection; (3) market participation; and (4) capacity valuation. Specifically, FERC directed that each RTO or ISO file a report within 180 days from the order providing:  (1) a description of its current practices related to these four issues; (2) an update on the status of any ongoing efforts to develop reforms related to the four issues; and (3) responses to the specific requests for information contained in the January 19, 2021 order. FERC’s request for reports follows a technical conference focusing on technical and market issues raised by hybrid resources (see April 14, 2020 edition of the WER) and a Notice Inviting Post-Technical Conference Comments. Continue Reading FERC Directs Informational Reports on Hybrid Resources from RTOs and ISOs Following Technical Conference

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

On August 18, 2020, the Federal Energy Regulatory Commission  (FERC) issued an order clarifying its filing requirements in the event its e-filing system malfunctions.

By way of background, in August 2019, FERC issued Order No. 862, which revised its procedural regulations to require that any documents delivered to the Commission by any means other than the United States Postal Service be sent to an off-site screening facility instead of to Commission headquarters on First Street in Washington D.C.  (See September 17, 2019 edition of the WER).  Order No. 862 was designed to enhance security for the Commission and its staff and was determined by the Commission not to impact the public’s ability to make timely filings, since the off-site screening facility would log, stamp, and record deliveries just as staff would do at the headquarters location.  In the order, FERC continued to strongly encourage use of e-filing.  Order No. 862 was originally slated to become effective 60 days after its publication in the Federal Register, but the effective date was ultimately delayed until July 1, 2020 (see November 19, 2019 and July 2, 2020 editions of the WER). Continue Reading FERC Clarifies Policy for Ensuring Timely Filing in the Event of E-Filing Malfunction

The Federal Energy Regulatory Commission (FERC or the Commission) released a Notice of Inquiry (Notice) on January 19, 2021 to solicit public comments on whether FERC should impose financial assurance requirements on hydropower projects to ensure that licensees have adequate financial resources to maintain their projects in safe condition.  The Notice comes on the heels of a significant and costly failure of two dams in Michigan in May 2020 following years of the licensee’s noncompliance with FERC dam safety orders, partly due to its alleged inability to pay for the work required.  In the months since the dam failures, the licensee declared bankruptcy, leaving insufficient resources to conduct over $300 million in repairs to four different dams, reimburse neighboring property owners for damages caused by flooding, and pay the substantial civil penalty recently proposed by FERCContinue Reading FERC Floats Financial Assurance Requirements for Hydropower Projects To Ensure Funding for Dam Safety and Environmental Requirements

The Federal Energy Regulatory Commission (FERC) has issued an order proposing a $15 million civil penalty in response to the failure of a licensee to respond to FERC dam safety orders in the wake of the failure of the Edenville dam and downstream FERC-licensed Sanford Dam (Project No. 2785) in Michigan in May 2020 (see June 1, 2020 edition of the WER).  The December 9, 2020 Order to Show Cause and Notice of Proposed Penalty followed months of FERC orders and directives to the licensee related to the catastrophic failure of the two dams, which resulted in the evacuation of 10,000 people, an estimated $190 million in economic damages to local residents, and $55 million in response costs, prompting Governor Gretchen Whitmer to request a disaster declaration from the federal government. Continue Reading FERC Issues Order Proposing Substantial Penalty for Licensee in Michigan Dam Failure