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About Dave

Dave Poe represents and provides advice to clients who own infrastructure assets subject to governmental regulation in their ownership and/or operation. These clients include industrial companies, electric utilities, hydroelectric generators, telecommunications and cable TV companies. The regulatory agencies involved include the Federal Energy Regulatory Commission (FERC), Federal Communications Commission (FCC) and many state public-service commissions. His litigation experience includes contested matters before these agencies and judicial review in various courts, including the Supreme Court and a number of the U.S. Courts of Appeal.

He counsels investors, owners and potential owners with respect to hydroelectric and transmission investments, including issues arising under state law as well as both Parts I and II of the Federal Power Act. In addition, he represents clients in contract negotiation, antitrust counseling, risk management and issues relating to public-utility holding companies and affiliates.

Dave also advises and represents clients in administrative and arbitration proceedings relating to complex factual matters involving hydroelectric licensing (including relicensing) and certification, environmental and recreational issues, accounting issues, interconnections, transmission and public utility rates and tariffs, contracts and complaints. He also has knowledge of generic administrative rulemaking proceedings involving deregulation and competition relating to adaptation of traditional regulatory models to emerging technology and competitive markets.

Experience

Recent Notable Matters

Major producer of aluminum — ongoing representation of the client, which is also a public utility holding company by virtue of its ownership and operation of hundreds of megawatts of electric generation and transmission. Successful restructuring of that company’s regulated electric assets and related external power supply arrangements and inter-company operating arrangements into separate public companies

Major industrial power supplier — extensive and ultimately successful multijurisdictional litigation over relicensing of a 210 MW, multi-development hydroelectric project, including litigation of Clean Water Act certification, ownership issues, conflicts between federal and state regulators, negotiation of partial settlements and ultimately divestment of the project

Investment funds and public utility holding companies — advice regarding possible purchase of various hydroelectric portfolios

New England utility — litigation in U.S. Court of Appeals of cases involving rates of return on transmission assets and contractual expansion rights

Eastern U.S. utility — litigation and negotiated settlement of complex headwater benefits case involving multiple owners over decades of ownership

Eastern U.S. utility — successful amendment of a hydro license to permit a $450 million project redevelopment through the addition of a new powerhouse and an additional 100 MW of installed capacity

Western U.S. utility — arbitration of dispute with Native American tribe over sale of 290 MW dam

Western U.S. utility — sale of 630 MW hydroelectric generation portfolio involving license compliance issues

Southeastern U.S. utility — amendments to formula rates for wholesale electric sales, Open Access Transmission Tariffs and regulatory accounting treatment for acquisition premium

Publications and Speeches

"Reflections," ABA Section of Infrastructure and Regulated Industries, Spring 2017.

“News You Can Use on Net Neutrality,” Electric Light & Power, June 2015.

“Emerging Legal and Regulatory Matters Impacting Northwest Hydro,” Northwest Hydroelectric Association Annual Conference, February 2015.

“Hot Topics in the Hydro Arena,” National Hydropower Association Annual Conference, April 2014.

“Court affirms FERC ROE policy, but faults FERC for not applying official notice,” Power Engineering, June 2013.

“High Noon in the 7th Circuit,” Energy & Mining International and Energy & Infrastructure, June 2013.

“Court affirms FERC ROE policy, but faults FERC for not applying official notice,” Electric Light & Power, May 2013.

“A New Groundwork For Applying The Mobile-Sierra Standard,” Law360, March 2013.

“PPL Montana LLC v. Montana: Supreme Court Decides Riverbed Ownership Dispute,” Recent Developments in Public Utility, Communications and Transportation Industries 2012, American Bar Association’s Section of Public Utility, Communications and Transportation Law, 2012.

Credentials

Education

Duke University School of Law,
J.D.
1974
University of Missouri,
B.S.M.E.
1970
cum laude, Honors Scholar

Bar Admissions

District of Columbia
New York
North Carolina
Maryland

Affiliations

ABA Board of Governors
Finance Committee, 2013 - 2016; Investment Subcommittee, 2013 - 2016; Subcommittee on Executive Compensation, 2013 - 2016
Delegate to the ABA House of Delegates
American Bar Association
Chair, Section of Public Utility, Communications, and Transportation Law, 2003 - 2004
CCH Power and Telecom Law
Advisory Board, 1997 - 1999
University of Missouri Columbia
Advisory Board, Rate Symposium, 1997 - 1999
Federal Energy Bar Association
Member
Federal Communications Bar Association
Member

News

Insights

Insights

New Default 40-Year Hydro License Term

October 23, 2017

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...

A Call to Focus on Strengthening Grid Resilience and Reliability: DOE Staff Report Offers Timely Insights on Fundamental Market Changes

September 14, 2017

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...

FERC Reexamines its Policy on Hydro License Terms

April 12, 2017

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...

FERC to Re-Examine Its Policy on the Length of Hydroelectric License Terms

November 18, 2016

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...

Supreme Court Upholds FERC's Demand Response Rule, Order No. 745

January 25, 2016

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...

Senate Energy Bill Provisions On Hydro Licensing

July 28, 2015

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...

FERC's Demand Response Policy Defended at the Supreme Court

July 17, 2015

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...

News You Can Use on Net Neutrality

March 24, 2015

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...

D.C. Circuit Amends Its Smith Lake Opinion Dismissing Appeal of FERC Licensing Order

February 3, 2015

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...

Licensing Efficiency and Environmental Streamlining comes to Small Hydro Projects

August 12, 2013

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...

D.C. Circuit Affirms FERC ROE Policy But Reverses For Failure to Apply APA Official Notice Rule

May 10, 2013

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...

Fee Relief: FERC Agrees to No Longer Assess Annual Charges to Projects Subject to Power Site Reservations

March 25, 2013

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...

FERC Enforcement's Expanding Reach: Focus on Hydro Licensee

January 18, 2013

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...

Noteworthy

Noteworthy

The Legal 500 United States
Energy Regulatory: Conventional Power, 2017, 2019; Energy Litigation: Conventional Power, 2017; Energy: Regulatory, 2013
Internet Brands, Inc.
Martindale-Hubbell® AV® Preeminent™ Rating
American Bar Association, Infrastructure and Regulated Industries Section
Samuel H. Porter Award, 2017
University of Missouri
Engineering Honor Award, 2012
The Catholic University of America's Columbus School of Law
Adjunct Faculty, 1992 - 1998

Events

Past Events

Transmission Business School

Washington, DC
May 1, 2017
May 5, 2017

Northwest Hydroelectric Association Annual Conference

Portland
February 17, 2015
February 19, 2015