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 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 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (together, “Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.”  The practical implications of the Proposed Rule for hydropower project owners and energy project developers are that ephemeral streams and many ponds and ditches used in agricultural, industrial, and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures.
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On October 23, 2018, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Maine Council of the Atlantic Salmon Federation v. FERC rejected a challenge brought by several conservation groups (“Petitioners”) in response to a FERC order amending the licenses for three hydroelectric projects on Maine’s Kennebec River.  FERC’s order approved an an interim species protection plan for endangered Atlantic salmon and a handling and protection plan for shortnose and Atlantic sturgeon.  The Petitioners raised issues arising under the Endangered Species Act and claimed that FERC’s order violated the Kennebec Hydro Developers Group Agreement (“Kennebec Agreement”), of which the licensees are parties.
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On October 18, 2018, FERC denied several motions to stay an order issued on September 10, 2018, which invoked FERC’s rarely used authority under section 31 of the Federal Power Act to revoke the license for the existing 4.8-Megawatt Edenville Project No. 10808 (“Edenville Project”), located on the Tobacco and Tittabawassee Rivers in Gladwin and Midland Counties, Michigan.  Motions to stay FERC’s revocation order were filed by licensee Boyce Hydro Power, LLC’s (“Boyce Hydro”), Sanford Lake Preservation Association, Wixom Lake Association, and the Gladwin County Board of District Commissioner (together, the “Lake Associations”).  FERC denied the motion to stay because Boyce Hydro and the Lake Associations did not show that they would suffer irreparable non-economic harm if the stay were not in place.  FERC also held that the stay did not violate the public interest.
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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.
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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.
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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.
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