Hydroelectric Licensing & Compliance

Davis Wright Tremaine’s energy lawyers have the breadth and depth of experience to provide top-quality legal advice regarding virtually any hydroelectric licensing or compliance matter. We are very familiar with:

• FERC Licensing Processes: All three of FERC’s licensing processes (traditional, alternative and integrated), as well as the wide variety of substantive licensing and compliance matters that are administered by FERC under the Federal Power Act.
• Water Quality Certification: We are experienced in the process of obtaining a state water quality certification under Section 401 of the Clean Water Act. In some states, this process now rivals the FERC licensing process in terms of complexity, requiring the dam owner to show that there is reasonable assurance that the hydroelectric facility will comply with state water quality standards.
• Endangered Species Act: We are very experienced in navigating the requirements of the Endangered Species Act, which presents challenging hurdles anytime a listed species is potentially affected by a hydroelectric project. We also successfully pioneered the use of a requirement of the Energy Policy Act of 2005 that federal agencies defend before an administrative law judge the factual bases for their mandatory license conditions.
• Litigation: Our attorneys frequently represent hydroelectric clients in disputes before FERC, in administrative appeals before state and federal agencies, and before the federal circuit courts of appeal and the U.S. Supreme Court.

Led by lawyers in our Washington, D.C., Seattle, Portland, and Anchorage offices, we serve some of the nation’s largest hydroelectric generators and have decades of experience before FERC. Our lawyers in all four offices work closely with the federal and state water quality and natural resource agencies that can dramatically affect the requirements of a new or initial license or the outcome of a regulatory proceeding.

FERC licensing experience

• Hells Canyon Project No. 1971, Idaho Power Company. (Application for new license filed July 21, 2003; pending before FERC.)
• Mid-Snake Projects Nos. 1975, 2055, 2061, 2777, 2778, Idaho Power Company. (New licenses issued August 4, 2004 and affirmed by the U.S. Court of Appeals for the Ninth Circuit in 2006.)
• Swan Falls Project No. 503, Idaho Power Company. (Application filed June 26, 2008; pending before FERC.)
• Wells Project No. 2149, Public Utility District No. 1 of Douglas County, Washington. (Application filed May 27, 2010; pending before FERC).
• Box Canyon Project No. 2042, Public Utility District No. 1 of Pend Oreille County, Washington. (New license authorizing additional capacity issued July 11, 2005; license amended per settlement agreement and appeal dismissed in 2010.)
• Spokane River/Post Falls Project No. 2545, Avista Corporation. (New License issued June 18, 2009.)
• Rocky Reach Project No. 2145, Public Utility District No. 1 of Chelan County, Washington. (New license issued February 19, 2009.)
• Lake Chelan Project No. 637, Public Utility District No. 1 of Chelan County, Washington. (New license issued November 6, 2006.)
• Boundary Project No. 2144, Pend Oreille County P.U.D. in proceedings to relicense Seattle City Light's Boundary Project and to surrender Pend Oreille County P.U.D.'s license for the Sullivan Creek Project No. 2225, including the negotiation of interrelated settlement agreements. (Ongoing)
• Merrimac River Project No.1893, Public Service Company of New Hampshire. (New license issued May 18, 2007.

Litigation

• FERC counsel to Avista Corporation in connection with the relicensing of the Spokane River/Post Falls Project in Washington and Idaho, including representation of the licensee in a trial-type hearing under Section 241 of the Energy Policy Act, wherein a DOI Administrative Law Judge overturned key factual assertions that formed the bases for preliminary mandatory conditions filed by the DOI.
• Representation of Edison Electric Institute, American Public Power Association and NRECA before the United States Supreme Court in S.D. Warren v. Maine Board of Environmental Protection regarding application of Section 401 of the Clean Water Act to hydroelectric relicensing.
• Representation of Edison Electric Institute in the FERC rulemaking for the integrated licensing process and the Departments of Interior, Commerce and Agriculture joint rulemaking for the Energy Policy Act of 2005 hydroelectric trial-type hearing procedures.
• Represented Idaho Power in Idaho Rivers United v. FERC, in successfully opposing petitions for review challenging the relicensing of the Mid-Snake Projects.
• Represented Grant PUD in Crescent Bar Ass’n v. FERC, in successfully opposing petition for review of FERC order dismissing complaint against licensee.
• Counsel for Chelan County P.U.D. in Confederated Tribes of the Umatilla Indian Reservation v. Ecology (trial before the Washington State Pollution Control Hearings Board, holding that Section 401 of the Clean Water Act does not require strict adherence with numeric water quality criteria)
• Represented Southern California Edison Company in Pacific Gas & Electric Co. et al. v. FERC, in appeal of licensing orders to resolve whether the mandatory conditioning provisions of FPA Section 4(e) was limited to initial licensing.