On October 10, 2018, the U.S. Senate passed S. 3021, the America’s Water Infrastructure Act of 2018 (“AWIA”), which contains several hydropower provisions that seek to amend the Federal Power Act (“FPA”) to promote hydropower development.  The Senate passed the AWIA by a 99-1 vote.  The AWIA was previously passed by the U.S. House of Representatives on September 14, 2018 and will now go to the President for his signature. Continue Reading Congress Includes Hydropower Provisions in Water Bill Sent to the White House

On September 20, 2018, FERC denied the Utah Board of Water Resources (“Utah Board”) and the Washington County Water Conservancy District’s petition for a declaratory order, asking FERC to find that its licensing jurisdiction under the Federal Power Act (“FPA”) extends to all of the Lake Powell Pipeline Project facilities identified in the Board’s license application for the project, including 89 miles of water delivery pipeline. Continue Reading FERC Denies Petition for Declaratory Order on Jurisdiction for Lake Powell Pipeline

On Thursday, June 28, 2018, the Senate approved ten individual hydropower bills by unanimous consent.  Seven of the ten were previously passed by the House and will now go to the President for his signature.  The remaining three bills have not yet been passed by the House, but in all three cases, the House has passed either a companion bill or bills with language similar to the Senate bills. Continue Reading Senate Approves Hydropower Bills by Unanimous Consent

Three recent FERC staff decisions (“Decisions”) confirm that, for purposes of establishing the mandatory licensing requirements under the Federal Power Act (“FPA”), groundwater is not a “non-navigable Commerce Clause stream.”  Thus, a hydropower project—and particularly a closed-loop pumped storage project—that uses only groundwater as its water source will not require FERC licensing if the project does not trigger other jurisdictional tests under the FPA. Continue Reading FERC Confirms No Licensing Requirement for Certain Groundwater-Only Pumped Storage Projects

On June 7, 2018, the House Energy and Commerce Committee’s Subcommittee on Energy held a hearing to review improving interagency coordination for the timely processing of environmental reviews and authorizations for non-Federal hydropower projects.  The hearing focused on delays in the licensing process and how interagency coordination can improve licensing reviews. Continue Reading House Subcommittee on Energy Holds Hearing on Hydropower Licensing

On March 17, 2018, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing to eliminate the Licensed Hydropower Development Recreation Report, designated as FERC Form No. 80 (“Form 80”), which collects information on the use and development of recreational facilities at licensed hydropower projects.  In addition, FERC proposed in the NOPR to revise related regulations in order “to modernize public notice practices, clarify recreational signage requirements, and provide flexibility to assist licensees’ compliance efforts.”  Continue Reading FERC Proposes to Eliminate Form 80 for Hydroelectric Projects

On March 15, 2018, FERC denied the West Virginia Department of Environmental Protection’s (“West Virginia DEP”) and the West Virginia Division of Natural Resources’ (collectively, “West Virginia”) request for rehearing of FERC’s issuance of original licenses for two hydroelectric projects to be constructed, owned, and operated by FFP Missouri 15, LLC and FFP Missouri 16, LLC (collectively, “FFP”).  Specifically, FERC found that West Virginia waived its certification authority under section 401 of the Clean Water Act (“CWA”) by failing to act on the application within one year of receipt. Continue Reading FERC Finds West Virginia Waived CWA Section 401 Permit Authority for Hydropower Projects