Hydropower

Subscribe to Hydropower via RSS

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.

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.

The U.S. Department of the Army’s Assistant Secretary for Civil Works has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit, in a unanimous decision, granted a petition for review in Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir., Jan. 25, 2019). The key holding in the case, which concerns the ongoing Federal Energy Regulatory Commission’s 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 application for water quality certification within one year from when it was initially filed in 2006. The applicant for many years had followed, at the request of the States, the common industry practice of “withdraw-and-resubmit” of its water quality certification application in an attempt to annually reset the one-year time period for the States to act, as established under CWA section 401. The D.C. Circuit in Hoopa Valley Tribe invalidated this practice as a means of resetting the statutory clock, instead holding that the clear text of CWA establishes that “a full year is the absolute maximum” time for a state to decide on a water quality certification application.

On July 20, 2018, President Trump signed into law two pieces of legislation alleviating complex federal land use issues for two FERC-licensed hydropower projects in Alaska.  Strongly supported by the entire Alaska congressional delegation, Public Law No: 115-200 and Public Law No: 115-201 respectively allow the Swan Lake Hydroelectric Project (“Swan Lake”) and Terror Lake Hydroelectric Project (“Terror Lake”) to pursue needed and scheduled updates to their operations to maintain sufficient electric capacity for their customers in the Last Frontier.

On June 18, 2018, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE) clarified their guidelines for when offsets are required for wetlands impaired by development on the Last Frontier.  The new policy recognizes the uniqueness of Alaska for wetlands permitting, by allowing alternatives and flexibility related to compensatory mitigation as Alaska is home to 174 million acres of wetlands covering 43 percent of the land area.