On November 8, 2019, Representative Frank Pallone, Jr. (D-NJ), Chairman of the House  Energy and Commerce Committee, and Representative Bobby L. Rush (D-IL), Chairman of the Subcommittee on Energy (collectively the “Chairmen”), wrote a letter to FERC Chairman Neil Chatterjee expressing their concerns regarding FERC’s proposed changes to sections 201 and 210 of the Public Utility Regulatory Policies Act (“PURPA”).

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).

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.

On August 29, 2019, FERC issued a final rule revising 18 C.F.R. § 385.2001(a) and requiring that all physical filings and submissions to be delivered to FERC, other than those sent via the U.S. Postal Service (“USPS”) are to be sent to FERC’s off-site security screening facility in Rockville, Maryland (see September 17 edition of the WER).  The rule was scheduled to go into effect on November 4, 2019, 60 days after its publication in the Federal Register.

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.

On September 19, 2019, one Independent and four Democratic Senators wrote a letter to FERC which expressed concerns over recent actions taken by FERC and which directed a series of questions to FERC regarding the “apparent erosion” of FERC’s role in preventing fraud and manipulation in U.S. energy and financial markets (see October 3, 2019 edition of the WER). The concerns expressed by the senators related to (i) the decline in the number of civil penalty actions initiated by FERC; (ii) the closing of FERC’s Division of Energy Market Oversight (“DEMO”), and (iii) FERC’s ending its policy on issuing Notices of Alleged Violations (“NAVs”) regarding investigations.

On November 5, 2019, the Senate Committee on Energy & Natural Resources (“Committee”) held a hearing to consider the nomination of James Danly as a FERC Commissioner. Mr. Danly, currently FERC’s general counsel, was nominated to fill the vacancy on the Commission left by the passing of FERC Chairman Kevin McIntyre in January of this year.

On November 5 and 6, 2019, FERC staff held a two-day workshop at its headquarters in Washington, DC on technologies that increase the capacity, efficiency, or reliability of transmission facilities.  Panelists and FERC staff discussed technologies that are currently used in transmission planning and operations, challenges associated with the deployment of grid-enhancing technologies, and regulatory actions that might promote increased adoption of these technologies going forward. A formal notice requesting written comments will soon be issued. 

On November 1, 2019 FERC approved a Stipulation and Consent Agreement between its Office of Enforcement (“OE”), the regional reliability entity Texas Reliability Entity, Inc. (“Texas RE”), the North American Electric Reliability Corporation (“NERC”), and Calpine Corporation (“Calpine”), related to Calpine’s alleged violations of NERC reliability standards governing maintenance and testing of batteries and other protection systems, as well as provisions of the California Independent System Operator Corporation (“CAISO”) Tariff requiring entities to report planned and unplanned generator outages. As part of the settlement, Calpine neither admitted nor denied the alleged violations, but agreed to pay civil penalties of $375,000 to Texas RE and $25,000 to the United States Treasury, and to undergo compliance monitoring.