Section 7(h) of the Natural Gas Act (NGA) and Section 21 Federal Power Act (FPA) respectively vest Federal Energy Regulatory Commission (FERC or Commission) natural gas pipeline certificate holders or hydroelectric licensees with the ability to exercise the federal power of eminent domain to condemn property when the project proponent is unable to acquire necessary rights by contract or negotiation with the property owner. On June 29, the U.S. Supreme Court, in PennEast Pipeline Co. LLC v. New Jersey, No. 19-1039, held that the 11th Amendment of the Constitution does not bar a certificate holder under the NGA from exercising eminent domain to condemn state-owned property. Significantly for hydropower projects, the Supreme Court’s holding also potentially provides clarity that the 11th Amendment is not a bar to the analogous Section 21 provision of the FPA if a hydroelectric licensee must exercise eminent domain over project-necessary state-owned lands.

Continue Reading Hydroelectric Impact of PennEast Supreme Court Gas Pipeline Condemnation Ruling

On July 6, the U.S. Department of Energy (DOE) announced a funding opportunity for the research and development of wave energy converter (WEC) technologies for advancement toward wave energy commercial viability. As much as $27 million in federal funding is available for WEC technologies still in the early stages of development for testing at PacWave, an open ocean wave energy testing facility consisting of two sites, each located just a few miles from the deep-water port of Newport, OR.

Continue Reading Department of Energy Announces Funding Opportunity for Wave Energy Converter Technology

There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).

Continue Reading The Fourth Circuit Weighs In on the Interpretation of CWA Section 401

On May 26, the Senate Finance Committee voted to advance legislation that would amend certain energy tax provisions in an effort to combat climate change, curtail greenhouse gas emissions, and create jobs. The bill, known as the Clean Energy for America Act, would provide an “emissions-based, technology-neutral tax credit” for facilities with zero or net negative emissions as well as certain energy storage facilities and high-capacity transmission lines. The bill includes several provisions that would benefit hydropower facilities, including an extension of the production tax credit through the end of 2022, which will encourage new hydropower development and a provision that would make pumped storage hydroelectric facilities eligible for the investment tax credit. It would also include tax credits to encourage environmental, safety, and efficiency improvements at existing hydropower facilities and to remove dams that have reached the end of their useful life.
Continue Reading Proposed Legislation to Impact Hydropower

On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
Continue Reading District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment

Addressing environmental justice (EJ) has been an immediate priority for the Biden administration. Within a week of taking the oath of office, President Biden issued a sweeping executive order with a number of EJ initiatives, including creation of a White House Environmental Justice Interagency Council consisting of the heads of each Cabinet-level and independent federal agency. The order also directed federal agencies to “make achieving environmental justice part of their missions” through development of programs and policies aimed at addressing disproportionately high adverse environmental impacts on disadvantaged communities.

Continue Reading FERC Increases Focus on Environmental Justice

The question of how to regulate temperature in water bodies is one that states in the Northwest have struggled with for years. The U.S. Environmental Protection Agency (EPA) addressed that question on May 18, 2020, when it released a draft Total Maximum Daily Load (TMDL) to achieve water quality standards for temperature in certain reaches of the Columbia and Lower Snake Rivers in Oregon and Washington. This new TMDL comes a few months after a decision from the U.S. Court of Appeals for the Ninth Circuit, Columbia Riverkeeper v. Wheeler, requiring the agency to take the lead after Oregon and Washington failed to submit their own TMDL. Comments on the draft TMDL are due by the end of July 21, 2020.

Continue Reading EPA Issues Draft Temperature TMDL for Columbia and Snake Rivers

In light of the coronavirus disease (“COVID-19”), the Office of Personnel Management (OPM) issued guidance directing that all Federal Executive Branch departments and agencies within the National Capital Region (Maryland, Virginia, and Washington, D.C.) allow maximum telework flexibilities to all current telework eligible employees. This guidance applies to the headquarters of the agencies most involved in regulating hydroelectric projects, such as the Department of Energy (DOE), Department of the Interior (DOI), including the National Park Service (NPS), Fish and Wildlife Service (FWS), Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), the Department of Agriculture (USDA), including the Forest Service (FS), and the National Oceanic and Atmospheric Administration (NOAA), including the National Marine Fisheries Service (NMFS). The Federal Energy Regulatory Commission (FERC), an independent agency within DOE, and the United States Army Corps of Engineers (USACE), housed within the Department of the Army, have also taken significant steps to respond to COVID-19.

Continue Reading Federal Agency COVID-19 Updates Impacting the Hydropower Industry

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

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.

Continue Reading FERC Issues First Order Applying New Federal Power Act Section 36 by Granting a 50-Year License Term