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 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 August 9, 2019, the Federal Energy Regulatory Commission (“FERC”) ruled that hundreds of millions of dollars of ongoing and future investments by Chelan County Public Utility District (“Chelan PUD”) in the Rock Island Hydroelectric Project qualified as early-action investments under the new section 36(c) of the Federal Power Act (“FPA”).  Accordingly, FERC will consider these significant investments when the Rock Island Project undergoes relicensing of its FERC license prior to the 2028 expiration of the license.

Continue Reading FERC Approves First-Ever Determination on Early-Action Investment Credit Under Section 36 of the Federal Power Act