David R. Poe

With more than 300 projects anticipated to undergo relicensing over the next 8 years, the Federal Energy Regulatory Commission (“FERC”) issued a new policy statement on October 19, 2017 establishing a 40-year default license term for Federal Power Act (“FPA”) hydroelectric licenses for projects located at non-federal dams. [1] Since the...

The U.S. Department of Energy (“DOE”) recently released its highly-anticipated Staff Report to the Secretary on Electricity Markets and Reliability . The report weighs heavily on the themes of focusing...

The term of years granted in a federal hydroelectric license is a major – if not the major – factor in inducing a licensee to invest money in a hydroelectric project. The longer the term, the greater the opportunity to earn a return on such investments, particularly given the year-to-year variability of river flows. Thus it was not surprising that the Federal Energy Regulatory Commission’s (“FERC’s”) recent Notice of Inquiry (“NOI”) on the length of license terms in Docket No. RM17-4 drew a range of responses across a swath of interest groups. What was perhaps unexpected was the apparent...

On November 17, 2016, the Federal Energy Regulatory Commission (Commission) issued a Notice of Inquiry (NOI) to re-examine its policy on the length of hydroelectric license terms under the Federal Power Act. The Commission’s NOI is a tacit admission that the existing policy has not been working successfully – at least as measured against the present Commission’s policy goals. Section 15(e) of the Federal Power Act provides that a license term for any new license, i.e. , a relicense, shall be not less than 30 or more than 50 years. Under existing policy for hydroelectric projects, the...

In a closely watched case with potential impacts across a broad swath of the electric energy industry, on January 25, 2016, the U.S. Supreme Court reversed the D.C. Circuit's May 2014 ruling in EPSA v. FERC and instead upheld the Federal Energy Regulatory Commission's (FERC) demand response rule, Order No. 745, thereby affirming FERC's jurisdiction to regulate wholesale markets. FERC issued Order No. 745 with the aim of encouraging participation of demand resources - generally industrial and other large energy users that can reduce or forego energy consumption during certain periods - in...

The draft comprehensive energy bill released by Senator Murkowski, Chair of the Senate Committee on Energy and Natural Resources, and reflecting her collaboration with Senator Cantwell, the Ranking Member on the Committee, contains a number of provisions relating to hydro. If enacted in anything close to their present form, these provisions would represent the most ambitious reform of the hydroelectric licensing process since the Electric Consumers Protection Act of 1986 ("ECPA"). However, ECPA essentially represented a bargain between owners of existing hydro who were concerned about the...

Briefs defending the Federal Energy Regulatory Commission's demand response ("DR") pricing policy were filed in the Supreme Court of the United States on July 9, 2015. The arguments set forth in those briefs will determine whether FERC's robust support of DR as a player in competitive wholesale electric energy markets will survive legal scrutiny. Notably, the brief submitted by the Solicitor General of the United States ("SG) on behalf of FERC reflects interesting and somewhat surprising choices in defense of the Commission's policy which D.C. Circuit had characterized as regulatory...

At first blush, there would appear to be no connection between the regulation of electricity and gas services and the FCC's most recent order [1] on what is commonly called "net neutrality." But lurking just beneath the surface of that order are arguments and analogies that should be of concern to every lawyer with a connection to the netherworld of electric power and gas regulation. The FCC's Net Neutrality Order, unless overturned in the inevitable court challenge, represents a precedent for open-ended informal rulemaking without meaningful notice and comment. It also represents the end of...

On January 30, 2015, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) took the highly unusual step of amending an earlier opinion and issuing a statement to further explain its rejection as untimely of an appeal filed by property owners in response to FERC's issuance of a new 30-year hydroelectric license to Alabama Power Company. Although the D.C. Circuit amended its prior opinion and issued an explanatory statement, it nevertheless denied en banc review of its earlier decision. Previously, on September 26, 2014, the D.C. Circuit issued an opinion holding that a petition for...

Early Friday evening, President Obama signed into law two bills which aim to speed the licensing and environmental approval of low-impact hydropower projects. One bill is focused on projects under 5 megawatts constructed in manmade conduits - tunnels, canals, pipelines, aqueducts, flumes, ditches, or similar water conveyances - operated for the distribution of water for agricultural, municipal, or industrial consumption. These facilities no longer require FERC licensing, and therefore should be able to move forward much more expeditiously. Another provision allows slightly larger facilities...

The D.C. Circuit's remand today of a FERC transmission incentive rate of return order relating to Southern California Edison Company ("SoCal Edison") is less interesting for its affirmance of the Commission's rate of return methodology, than it is for its remand based on FERC's misuse of the official notice provisions of the Administrative Procedure Act ("APA"). The case, SoCal Edison v. FERC , U.S. Court of Appeals for the D.C. Circuit, No. 11-1471, May 10, 2013, essentially affirmed FERC's determination to change its yardstick on measuring required returns on equity ("ROE") for inclusion...

On March 21, 2013, the Federal Energy Regulatory Commission ("FERC") granted the petition of a group of hydroelectric licensees, calling themselves the Power Site Reservation Fee Group, declaring that FERC will not assess annual land use charges pursuant to Section 10(e)(1) of the Federal Power Act ("FPA"), 16 U.S.C. § 803(e)(1), for lands owned by licensees but still subject to a power site reservation in accordance with Section 24 of the FPA, 16 U.S.C. § 818. FPA Section 10(e)(1) requires licensees to pay to the United States reasonable annual charges, as set by FERC, for, among other...

In a move somewhat unusual in the context of its normal exercise of authority with respect to hydroelectric licenses, on January 15, 2013 FERC publicly issued a " Staff Notice of Violations ", stating that its staff had preliminarily determined that Seneca Falls Power Corporation has violated several articles of the license for the Seneca Falls Project, No. P-2438, located in upstate New York. The litany of alleged violations is long, ranging from failure to procure and maintain adequate property rights for the project to failure to meet certain environmental conditions, such as maintenance...