On February 5, 2019, a copy of a December 13, 2018 policy directive memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works to the U.S. Army Corps of Engineers (“USACE”) Chief of Engineers was released.  Notably, the memorandum directs the 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 (“CWA”) 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  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water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. Continue Reading U.S. Army Corps of Engineers to Tighten Clean Water Act Section 401 Certification Timeframes

On December 14, 2018, Vineyard Wind, LLC (“Vineyard Wind”) filed a Petition with FERC to waive the pro-rata proration requirements of the ISO New England, Inc. (“ISO-NE”) Transmission, Markets and Services Tariff (“Tariff”) so that Vineyard Wind could participate in the upcoming ISO-NE Forward Capacity Auction 13 (“Auction 13”) as a Renewable Technology Resource (“RTR”).  Because time was of the essence, Vineyard Wind asked FERC to render an expedited decision no later than January 29, 2019.  FERC took no action on the Petition, however, and as of this writing, has also not taken any action on Vineyard Wind’s subsequent Emergency Motion for relief, rendering it all but certain that Vineyard Wind will be unable to participate in Auction 13. Continue Reading FERC Takes no Action on Vineyard Wind’s Petition for RTR Status

On February 5, 2019, in an unpublished summary order, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit (“2nd Circuit”) overturned the New York State Department of Environmental Conservation’s (“New York DEC”) denial of a water quality certification for National Fuel Gas Supply Corporation’s (“National Fuel”) Northern Access Pipeline Project and remanded it back to the state for further explanation. Continue Reading 2nd Circuit Vacates New York’s Denial of Water Quality Certification for Gas Pipeline

On February 4, 2019, FERC issued a notice that its staff and the Department of Energy (“DOE”) will co-host a technical conference on Security Investments for Energy Infrastructure.  The technical conference will broadly address two main topics.  Continue Reading FERC, DOE Announce Technical Conference on Security Investments for Energy Infrastructure

On January 29, FERC issued an order accepting revisions to ISO New England Inc.’s (“ISO-NE”) Competitive Auctions with Sponsored Policy Resources (“CASPR”) program, the ISO-NE’s mechanism to integrate state-sponsored generation resources (“Sponsored Policy Resources”) that might otherwise suppress prices in its Forward Capacity Market.  The order addressed the contested test price mechanism in detail, ultimately accepting it as a just and reasonable modification to ISO-NE’s Forward Capacity Auction (“FCA”) design.  In so doing, FERC’s order permits ISO-NE to bar capacity resources from participating in the FCA secondary auction if those resources bid capacity into the FCA primary action at a price below the ISO-NE’s assessment of their going-forward costs.  FERC’s order drew a dissent from Commissioner Glick, who argued that the test price mechanism had not been shown to be just and reasonable. Continue Reading FERC Accepts Revisions to ISO-NE’s CASPR Program, Including Disputed Test Price Proposal

On January 29, 2019, FERC rejected the New England Power Pool Participants Committee’s (“NEPOOL”) proposed revisions to its Second Restated NEPOOL Agreement (“NEPOOL Agreement”) that would have disqualified members of the press from being eligible to become NEPOOL members.  NEPOOL argued that the proposed revisions (“NEPOOL Press Amendments”) were necessary because allowing members of the press as NEPOOL members would undermine the effectiveness of the NEPOOL stakeholder process.  FERC rejected the revisions in part because, according to FERC, NEPOOL did not show that the revisions were just and reasonable and not unduly discriminatory or preferential. Continue Reading FERC Rejects NEPOOL Proposal Prohibiting Press Membership

On January 31, 2019, Commissioner Cheryl LaFleur announced that she is no longer seeking a third term and will be leaving FERC this year.  Commissioner LaFleur stated that she plans to stay at least until her current term expires, on June 30, 2019, and may stay longer depending on her plans and the appointment of her successor. Continue Reading Commissioner LaFleur Will Not Pursue Another Term

On January 29, 2019, over 180 environmental organizations (“Environmental Groups”) wrote a letter to members of Congress requesting a congressional hearing into the approval process for interstate gas pipelines.  The Environmental Groups argue that FERC approves nearly all proposed pipelines, abuses its eminent domain authority, and relies on erroneous data when evaluating whether to allow pipeline companies to begin construction. Continue Reading Environmental Groups Request Congressional Hearing on FERC Approval of Interstate Gas Pipelines

On January 31, 2019, pursuant to Public Law No. 115-270, the America’s Water Infrastructure Act (“AWIA”), FERC issued a notice soliciting comments on proposed rules to establish expedited licensing processes for qualifying projects at existing nonpowered dams and closed-loop pumped storage facilities. Continue Reading FERC Issues Notice on Proposed Hydropower Rules

On January 25, 2019, the U.S. Court of Appeals for the District of Columbia (“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 FERC’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. Continue Reading D.C. Circuit Opinion Strikes Down “Withdraw-and-Resubmit” Practice for State Water Quality Certifications