On January 17, 2019, FERC denied requests for rehearing of its prior order to revoke Boyce Hydro Power, LLC’s (“Boyce Hydro”) license for its 4.8 MW Edenville Project No. 10808 (“Edenville Project”), which consists of a 6,600-foot-long dam in Michigan.  Boyce Hydro and the Sanford Lake Preservation Association (“Sanford Lake”) (together, the “Petitioners”) raised several claims in their requests for rehearing, including that FERC discounted the efforts Boyce Hydro took to remedy safety issues at the dam. 
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On January 18, 2019, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) denied a petition by the State of North Carolina to review two FERC orders involving the relicensing of the Yadkin River Hydroelectric Project (“Yadkin Project”) in North Carolina.  The D.C. Circuit found substantial evidence supporting FERC’s decision to deny North Carolina’s allegations of misrepresentation by Alcoa Power Generating, Inc. (“Alcoa”), the license applicant, and to grant a new operating license to Alcoa for the Yadkin Project.  The court also rejected North Carolina’s proposal to invoke the federal recapture provision of the Federal Power Act (“FPA”) to the state at Alcoa’s net investment plus severance damages.
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On January 4, 2019, the U.S. District Court for the District of Maine (“Maine District Court”) issued an order on two motions for summary judgment concluding that FERC’s assessment of a civil penalty against Competitive Energy Services, LLC (“CES”) and its managing member, Richard Silkman (collectively, “Respondents”) was not time-barred by the statute of limitations under 28 U.S.C. § 2462.  In doing so, the Maine District Court denied the Respondents’ motion for summary judgment. 
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On December 18, 2018, FERC eliminated the requirement for hydroelectric project licensees to file Form 80, which solicited information on the use and development of recreation facilities at FERC-licensed hydropower projects.  FERC also revised Sections 8.1 and 8.2 of its regulations to (1) modernize licensee public notice practice, (2) clarify recreational signage requirements, and (3) provide flexibility to assist licensees’ compliance with these requirements.  The Final Rule will go into effect 90 days after it is published in the Federal Register.
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On November 23, 2018, the FERC After Action Panel (“FAAP”) issued a report (“FAAP Report”) providing an evaluation of the causes and recommendations to FERC after a spillway failure that took place at the Oroville Dam in February 2017.  According to the FAAP Report, issues with the Oroville Dam spillways have been ongoing since the project was commissioned in 1967, and there are shortcomings related to the implementation of FERC’s Part 12 dam safety regulations.  In light of its assessment, the FAAP provided FERC with recommendations for improvement of the Part 12 program.
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On December 6, 2018, the United States Senate confirmed Bernard L. McNamee as a FERC Commissioner.  President Donald Trump nominated McNamee to fill the vacancy left by Commissioner Robert Powelson following Powelson’s August 2018 resignation from FERC to become president and CEO of the National Association of Water Companies (see October 9, 2018 edition of the WER).  McNamee was sworn in on December 11, 2018, returning FERC to its full five-member complement.
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On November 19, 2018, FERC denied a complaint filed by CXA La Paloma, LLC (“La Paloma”) requesting that FERC use its jurisdiction over resource adequacy to direct the California Independent System Operator Corp. (“CAISO”) to implement centralized capacity procurement.  FERC found that La Paloma failed to meet its burden to demonstrate that CAISO’s tariff was unjust, unreasonable, or unduly discriminatory or preferential under section 206 of the Federal Power Act.
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