On April 15, 2019, the environmental group Columbia Riverkeeper (Riverkeeper) filed suit against the U.S. Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Washington, alleging that the Corps’ operation of the Chief Joseph Dam is in violation of the Clean Water Act (CWA). Riverkeeper’s complaint raises important questions as to whether certain discharges from hydropower facilities trigger the need for an authorization under the National Pollutant Discharge Elimination System (NPDES) pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
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In an order on rehearing issued April 18, 2019, the Federal Energy Regulatory Commission (Commission or FERC)—applying the newly minted Section 36 of the Federal Power Act (FPA), 16 U.S.C. § 823g—decided to extend the new license term for Pacific Gas and Electric’s (PG&E) Poe Hydroelectric Project by 10 years.  Pacific Gas and Electric, 167 FERC ¶ 61,047 (2019).  FERC’s initial relicensing order granted a new 40-year license term for the project, but on rehearing, the Commission decided that the new requirements of FPA Section 36 warranted the statutory maximum license term of 50 years.  FERC’s April 18 order on rehearing provides insight into how FERC interprets Section 36, which greatly expands the type of investments made by licensees that FERC must consider when determining the length of a new license term for a hydroelectric project.

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