Hydropower Report: January 2021

Troutman Pepper

Happy new year!

We begin 2021 with a transition of leadership in the Presidency and the U.S. Senate, and with the recent news that President Biden has named Richard Glick as the new FERC Chair. All of these changes in governance undoubtedly will bring significant changes—and proposals for change—affecting the hydropower industry.

In FERC’s first open meeting of the new year, and the last under Chairman Danly, the Commission announced a Notice of Inquiry inviting comment on whether it should require financial assurance measures, either on an individual or industry level, to ensure that licensees have the financial capacity to carry out project safety and environmental requirements of their FERC-issued licenses and exemptions. This Notice is in direct response to the dam failures that occurred in Michigan in May 2020, which resulted in catastrophic property and environmental damage to downstream communities. FERC’s Notice presents an important opportunity for the Commission to understand the effects of this potentially sweeping change to its hydropower administration and compliance program.

Other major developments since our last issue of the Hydropower Report include an update on FERC’s evolving application of the landmark Hoopa Valley Tribe decision on hydropower licensees. We also cover FERC’s new Commissioners, Allison Clements and Mark Christie, and discuss two recently promulgated changes to the Endangered Species Act’s implementing regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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