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.

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In the April 27, 2019 edition of the Energy Bar Association’s Energy Law Journal, FERC Commissioner Richard Glick and legal advisor Matthew Christiansen published an article titled “FERC and Climate Change,” describing that the actions of the Commission, as well as the family of federal and state agencies, have “substantial consequences” for climate change.  The authors argue that the threat of climate change does not necessitate “a wholesale reinterpretation of the Commission’s jurisdiction or a novel regulatory paradigm,” but rather a consistent application of FERC’s existing mandate.  In addition to discussing the Commission’s role in wholesale electric markets in enabling competition for zero-and-low carbon-emitting technologies (such as solar, wind, batteries and even distributed energy resources), the authors place emphasis on hydroelectric generation as an effective resource for grid decarbonization and that such benefits should be considered in FERC’s existing “public interest” analysis.
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On May 6, 2019, the Oregon Department of Environmental Quality (“Oregon DEQ”) denied a water quality certification under section 401 of the Clean Water Act (“CWA”) for the proposed Jordan Cove liquefied natural gas (“LNG”) export terminal and its feeder pipeline, the Pacific Connector, to be located on Oregon’s southern coast.
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On April 18, 2019, FERC issued a unanimous order, supported by all FERC Commissioners, ruling that the California State Water Resources Control Board (“SWRCB”) waived authority to issue a water quality certification under Section 401 of the Clean Water Act (“CWA”), 33 U.S.C. § 1641, in the pending hydropower relicensing of the Middle Fork American River Project (“Project”).  Applying the U.S. Court of Appeals for the D.C. Circuit’s (“D.C. Circuit”) seminal opinion in Hoopa Valley Tribe v. FERC issued in early 2019 (see January 30, 2019 edition of the WER), FERC held that SWRCB’s “active[] participation” in the applicant’s annual withdrawal-and-resubmittal of the license applicant’s request for Section 401 certification since 2012, “on occasion directly requesting the withdrawal and refiling,” constituted an agreement between the applicant and SWRCB that does not re-start the maximum one-year time period for states to act on a request for water quality certification under Section 401.
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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.
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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.
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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.
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