FERC proposes revoking hydro license for noncompliance

U.S. hydropower regulators have proposed revoking a Michigan hydroelectric project's license under the Federal Power Act, following findings of violations of numerous license provisions, agency regulations and orders.

At issue is the Edenville Hydroelectric Project, No. 10808, located on the Tittabawassee and Tobacco Rivers by Wixom Lake in Michigan. The Federal Energy Regulatory Commission initially issued a license for the 4.8-megawatt Edenville project in 1998. That license was eventually transferred to a company named Boyce Hydro Power, LLC.

According to public records in the Commission docket for the license, "Boyce Hydro has a long history of non-compliance" with license terms and conditions and with related provisions in the Federal Power Act and Commission regulations and orders. Orders in the docket recite history including a 2017 Compliance Order finding noncompliance with respect to the adequacy of the project's spillway capacity and other matters. As noted in the docket, "The Commission’s primary concern has been the licensee’s longstanding failure to address the project’s inadequate spillway capacity, which currently is designed to pass only approximately 50 percent of the PMF. Failure of the Edenville dam could result in the loss of human life and the destruction of property and infrastructure."

The Commission has tools that it can use to compel compliance with its laws and regulations. For example, on November 20, 2017, Commission staff issued an order requiring the licensee to cease generating at the Edenville Project.

Beyond ordering the project to stop generating power, the Commission can revoke a license. Section 31(b) of the Federal Power Act allows the Commission to issue an order revoking a license, after providing notice and an opportunity for an evidentiary hearing, if it finds that a licensee knowingly violated a final compliance order and was given a reasonable time to comply with that order before the revocation proceeding was commenced. 

On February 15, 2018, the Commission issued an Order Proposing Revocation of License in the Edenville project's docket. In that order, the Commission noted that the licensee "has failed for many years to comply with significant license and safety requirements, notwithstanding having been given opportunities to come into compliance... The licensee failed to meet nearly all the obligations in the compliance order, even after Commission staff granted multiple extensions."

The Commission noted that public safety "would not be affected by revoking the license." It noted that if the Commission were to revoke the license, its jurisdiction would end, and authority over the site will pass to the State of Michigan’s dam regulatory authorities.

The Commission also noted that revocation of the project license "does not mandate removal or any modification of the dam," citing both its broad authority under the Federal Power Act and its general policy not to condition the effectiveness of a license revocation on a licensee that has shown its unwillingness to comply with other Commission orders.

The Commission set a 30-day deadline within which the licensee may request an evidentiary hearing before an Administrative Law Judge, after which the Commission will decide the matter.

FERC hydro dam safety post-Oroville

As federal hydropower regulators examine how a California dam's spillway failed, an independent forensic team has released its final report on the Oroville Dam spillway incident -- and regulators have asked all other hydropower licensees to review the report and hold internal discussions on how the findings may apply to their own facilities and overall dam safety program.

Oroville Dam is a 770-foot high earthfill embankment dam on the Feather River in Northern California. Its service spillway was severely damaged during operations on February 7, 2017; water levels continued to rise, eventually overtopping and eroding the emergency spillway, threatening the stability of the structure on February 12, 2017.  Over 180,000 people were evacuated.

Following the incident, an independent forensic team studied the incident. The independent forensic team's report was released on January 5, 2018. It found that the incident "was caused by a long-term systemic failure of the California Department of Water Resources (DWR), regulatory, and general industry practices to recognize and address inherent spillway design and construction weaknesses, poor bedrock quality, and deteriorated service spillway chute conditions."

On January 26, 2018, the Commission published a letter to licensees presenting the Oroville Dam Independent Forensic Team's final report. In that letter, the Commission asked licensees and their Chief Dam Safety Engineers/Coordinators to "read this report, share it with your senior executives as well as all your dam safety staff and discuss how the findings may apply to your own facilities and overall dam safety program.

According to the Commission, that report concludes that flaws in the Oroville Dam Spillway existed since construction that were missed by the owner, regulators, and consultants. In the Commission's words, "It is very clear that just because a project has operated successfully for a long period of time does not guarantee that it will continue to do so." Emphasizing a safety-oriented corporate culture, the Commission also highlighted the report's finding that "compliance with regulatory requirements is not sufficient to manage risk and meet dam owners' legal and ethical responsibilities." The Commission's letter to hydropower licensees and exemptees highlights the importance of communication between dam safety staff and senior executives as part of an Owner's Dam Safety Program, and stated its expectation that regulated dam owners will have internal discussions to ensure facility safety.

Maine PUC releases 2015 renewable report

Maine energy regulators have released a report on the state's electricity renewable portfolio standard, presenting data from 2015.  The Maine Public Utilities Commission's Annual Report on New Renewable Resource Portfolio Requirement - Report for 2015 Activity [PDF] provides a look at Maine's renewables law, now in its tenth year on the books.  It may also inform legislative discussions later this spring about the future of Maine's renewable portfolio standard.

In 2007, the Maine legislature enacted a law requiring that specified percentages of electricity that supply Maine’s consumers come from “new” or Class 1 renewable resources, ranging from 1% in 2008 to 10% in 2017.  The law also required the Commission to report annually to the legislative energy committee on the status of this requirement and related compliance matters.

According to the report, Maine suppliers sourced approximately 891,757 renewable energy certificates or RECs, from 30 facilities, to comply with the 2015 requirement.  Of these, 20 facilities were fueled by biomass, 4 by hydropower, 3 by wind and 1 by landfill gas.  25 out of the 30 facilities were located in Maine, with 2 in New York, and one each in Connecticut, Massachusetts, and Vermont.  By REC volume, 99% came from facilities located in Maine.

The report also estimates the cost to Maine ratepayers of Maine's new renewable resource portfolio requirement.  According to the report, the cost of RECs used for compliance in 2015 ranged from "approximately $2.00 per MWh to $42.50 per MWh, with an average cost of $13.16 per MWh and a total cost of $11,738,174."  Adding in $3,018 in alternative compliance payments by one supplier, the report estimates a total cost to ratepayers during 2015 of $11,741,192.  The report translates this total cost into "an average rate impact of about one-tenth of a cent per kWh. This is equivalent to about 55 cents per month, or 1%, for a typical residential customer; $50 per month for a medium commercial customer that uses 50,000 kWh per month; and $500 per month for a large commercial/industrial customer that uses 500,000 kWh per month."

Maine law also includes a Class 2 renewable portfolio standard, requiring an additional 30% of electricity come from existing renewables and other Class 2 resources.  According to the Commission's report, the average cost of a Class 2 REC in 2015 was $0.28 per MWh, with a total cost of $965,818.  The report notes that this is "equivalent to about 5 cents per month for a typical residential customer, and $4 and $40 per month for medium and large commercial/industrial customers with the usage levels described above, respectively."

This session, the 128th Maine Legislature is considering several bills that could affect Maine's renewable energy laws, including LD 532, An Act To Remove the 100-megawatt Limit on Hydroelectric Generators under the Renewable Resources Laws, as well as LD 1185, a concept draft which "proposes to enact measures designed to update Maine's renewable portfolio standards."

Maine renewable energy report released

The Maine Public Utilities Commission has issued its latest annual report on Maine's use of renewable electricity, covering the 2014 calendar year.  The report shows the impact of Maine's renewable portfolio standard, a state law requiring electricity suppliers to source specified percentages of their electricity from renewable resources.  The report found that compliance costs have fallen nearly in half since 2013.

The Maine State House.

Since Maine's electric industry restructuring in 2000, state law has required competitive electricity providers -- retail suppliers -- to procure 30% of their load served from "eligible resources." These are generally defined in statute as renewable or cogeneration facilities.  A 2007 act of the Maine legislature added a mandate that specified percentages of electricity that supply Maine’s consumers be sourced from “new” renewable resources.  Generally, these are renewable facilities that have an in-service date, resumed operation or were refurbished after September 1, 2005.  This "Class I" renewable portfolio standard began at one percent of load in 2008, and increases in one percentage point each year until reaching ten percent in 2017.  The older "eligible resource" standard became known as "Class II."

The 2007 renewables law required the Public Utilities Commission to report annually to the legislature on the program and compliance.  Each year's report is based largely on the most recently filed Competitive Electricity Provider (CEP) annual compliance reports, which are filed each July, covering the prior calendar year.  So there is some lag between the events being tracked and the publication of the report.

The Commission has just released its report covering calendar year 2014. The report notes "approximately 75 certified facilities, with a total capacity of approximately 1220 MW," although some are not operating or are eligible for other states' renewable portfolio requirements.

In 2014, most suppliers complied with the Maine renewable portfolio requirement through the use of renewable energy certificates or RECs.  According to the report, RECs from 22 facilities were used by suppliers to comply with the 2014 new renewable resource requirement.  Of these, 18 are biomass, 3 are hydro, and 1 is a wind facility. 20 of the 22 facilities are located in Maine, one is located in Connecticut and one is located in Massachusetts. Maine facilities, mostly refurbished biomass plants, supplied 99% of the approximately 811,476 RECs purchased to meet the 2014 portfolio requirement.

For calendar year 2014, 78.05% of the Class I RPS requirement was satisfied through the purchase of RECs during that year, 0.0004 % was satisfied through an alternative compliance mechanism, 21.88% was satisfied using RECs banked from 2013 and 0.1130 % will be satisfied during a 2015 cure period allowed by rule. On top of this activity, 181,595 RECs were purchased in 2014 and banked for future use and an additional 8 RECs were purchased where the supplier did not indicate whether the certificates were to be banked or would not be used.

As the Commission notes in its report, "the prices for Maine Class I RECs declined substantially over the two years leading up to 2014. This has occurred because Maine’s portfolio requirement includes, as an eligible resource, refurbished biomass facilities (which are not generally eligible in other New England states)."

One result is that the annual cost of Class I compliance fell roughly in half since the last report, with a total cost of $14,296,249 in 2014 compared to just $6,947,269 in 2013.  The report describes the cost of Class I RECs used for compliance in 2014 as ranging from approximately $1.72 per MWh to $22.33 per MWh, with an average cost of $8.56 per MWh.  Adding $198 for one supplier who satisfied a portion of the portfolio requirement through alternative compliance mechanism at the rate of $66.16 per MWh, the report describes a total Class I compliance cost to ratepayers during 2014 of $6,947,269.  The Commission translated this into "an average rate impact of about 0.06 cents per kWh (or about 30 to 35 cents monthly for a typical residential bill). In percentage terms, this translates to a residential customer bill impact of about one half of 1%."

The report also describes the cost of Class II RECs used to satisfy the eligible resource portfolio requirement as ranging from $0.00 per MWh (some RECs were provided for free as part of an energy transaction) to $1.80 per MWh, with an average cost of $0.52 per MWh and a total cost of $1,834,314. According to the Commission, this translates into less than ten cents per month on a typical residential bill.

FERC approves Berkshire Power settlement

Federal energy regulators have approved a stipulation and consent agreement under which two companies admit violations of the Federal Power Act and regulations prohibiting energy market manipulation.

The case involves Berkshire Power Company LLC (Berkshire), and Power Plant Management Services LLC. Berkshire owns an approximately 245 MW natural gas-fired, combined-cycle generating facility in Agawam, Massachusetts. Berkshire hired PPMS to provide project management and administrative services at the plant.

According to Federal Energy Regulatory Commission documents, at the direction of a general manager hired by PPMS, "Berkshire Power engaged in a fraudulent scheme to perform unreported maintenance work and to conceal that work and associated maintenance outages from ISO-NE."  The documents allege that individuals at the plant scheduled maintenance work for times when the plant was unlikely to be dispatched, and then failed to notify ISO-NE about the work or the associated Plant unavailability.  In at least six instances, this led to representations to ISO New England dispatchers that the plant was starting up or was able to start up when it was, in fact, unavailable due to ongoing maintenance or other technical problems.

The Commission's Office of Enforcement initiated its investigation in June 2014, following a referral from the United States Attorney’s Office for the District of Massachusetts.  Following fact-finding, Enforcement concluded that Berkshire and PPMS violated section 222 of the Federal Power Act and the Commission’s Anti-Manipulation Rule by concealing its maintenance work and associated outages from ISO-NE. That rule prohibits any entity from using a fraudulent device, scheme, or artifice, or engaging in any act, practice, or course of business that operates or would operate as a fraud; with the requisite scienter; in connection with a transaction subject to the jurisdiction of the Commission.

Enforcement also concluded that Berkshire violated Commission regulations by violating provisions of the ISO-NE tariff requiring it to schedule and disclose plant maintenance and to accurately report on plant availability, and by making false and misleading representations to ISO-NE. Finally, Enforcement concluded that Berkshire violated Commission-approved reliability standards by withholding information regarding its planned maintenance outages and plant capabilities and availability.

According to the order, the Office of Enforcement, Berkshire, and PPMS have resolved the matter by a stipulation and consent agreement.  Under that deal, Berkshire and PPMS stipulate to the facts, admit the violations set out in the Agreement, and agree to pay a civil penalty of $2,000,000 to the United States Treasury. Berkshire agrees to pay to ISO-NE disgorgement of $1,012,563, plus interest. Berkshire further agrees to pay a civil penalty of $30,000 to the United States Treasury for its violations of the Reliability Standards.

In its March 30, 2016 order accepting that settlement, the Commission noted Enforcement's consideration of the factors in the Revised Policy Statement on Penalty Guidelines.  Factors cited here as supporting "the appropriate remedy" include "that both companies cooperated fully and comprehensively throughout the investigation, both accepted responsibility for their violations, and neither has a prior history of violations."  The order notes that the remedy also reflects that neither company had an effective compliance program in place during the relevant period, and that a high-level employee at the plant directed the scheme.

The order directs Berkshire and PPMS to make the disgorgement and civil penalty payments as required by the Agreement within ten business days of its Effective Date. ISO-NE was directed to allocate the disgorgement funds pro rata to network load during the applicable period. The order also directs Berkshire and PPMS to comply with the provisions in the Agreement also requiring them to implement procedures to improve compliance going forward, subject to monitoring via submission of semi-annual reports for at least one year.

RGGI states comment on Clean Power Plan

The nine Northeastern and Mid-Atlantic states participating in the Regional Greenhouse Gas Initiative (RGGI) have submitted joint comments to the United States Environmental Protection Agency in connection with its Clean Power Plan rule.

RGGI is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce carbon dioxide emissions from the electric power sector.  The program establishes a regional cap on the amount of carbon dioxide that power plants can emit through the issuance of a limited number of tradable allowances.  RGGI's first three-year compliance period began on January 1, 2009, making it the nation’s first market-based emissions trading program to reduce greenhouse gas pollution.

On August 3, 2015, the EPA announced its "Clean Power Plan," new regulations limiting power plant carbon emissions under Section 111(d) of the Clean Air Act.  While states are free to build their own compliance plans, the rule establishes emission guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing fossil fuel-fired electric generating units.  The rule also encourages states and regions to work together in developing compliance plans.

States are now tasked with developing their compliance plans.  The Clean Power Plan gives states until September 6, 2016, to either submit a final carbon-cutting plan or to submit an initial plan along with a two-year extension request.  Many observers have noted that for states already participating in RGGI, that program may be able to serve as a mechanism for Clean Power Plan compliance.  This prospect is natural, as RGGI and the Clean Power Plan share some common goals and features.

This week, the nine RGGI states submitted joint comments to the EPA on the Federal Plan (FP) and Model Rules (MR) proposed as part of the Clean Power Plan.  In those comments, the RGGI states "welcome EPA's continued recognition that well-designed multi-state, market-based programs like RGGI can deliver cost-effective emissions reductions."

In an accompanying press release, the RGGI states note their own "track record of success."  As cited in the joint comments, the "RGGI states have seen benefits to the economy and public health, as well as consumer savings, experiencing 8 percent GDP growth across the region while reducing power sector carbon pollution by more than 40 percent since 2005," while maintaining electric reliability.

Based on this experience, the RGGI states encouraged EPA to select mass-based approaches as the most cost-effective, transparent, and reliable way to achieve emission reductions.  (Mass-based approaches set limits on the total mass of carbon allowed to be emitted -- like 100 million tons.  By contrast, rate-based approaches might limit the rate of carbon emissions per unit of useful electric energy.)

Recognizing that trading platforms can play an important role in markets, increasing participation, access, and liquidity, the RGGI states urged EPA to "adopt a trading platform that is flexible and customizable to encourage broader trading markets."

The RGGI states also asked EPA to encourage auctioning of carbon allowances, and reinvestment of the auction proceeds.  In so doing, the RGGI states pointed to their own reinvestment of RGGI auction proceeds in efficiency and consumer relief.

Finally, the RGGI states encouraged EPA to prevent "leakage" of carbon emissions from existing sources to new sources, by including new sources in a mass-based program or some other equally effective alternative method of allocation.

With states now working to develop Clean Power Plan compliance strategies, how will the RGGI experience shape state plans to comply with the Clean Power Plan?

US Clean Power Plan adopted

President Obama will formally unveil the Clean Power Plan today, a set of regulations by the U.S. Environmental Protection Agency (EPA) to reduce carbon emissions associated with the electric power industry.  A blog post by EPA Administrator Gina McCarthy emphasizes the Clean Power Plan's protection of health and the environment, states' rights to choose their own implementation paths, reduction of future energy costs, and leadership on climate issues.  But some politicians, utilities and states have expressed concern about the regulations' impact, and could launch legal challenges -- or states might refuse to comply.  What's in store for the Clean Power Plan?

It has been just over a year since EPA first released its draft Clean Power Plan in June 2014.  These regulations under Section 111(d) of the Clean Air Act are designed to reduce the carbon intensity of the U.S. electric power sector -- essentially, how many pounds of carbon are emitted per megawatt-hour of electric energy produced.  Under the draft Clean Power Plan, EPA sets carbon intensity limits for each state, collectively designed to reduce carbon emissions by 30% below 2005 levels.  Each state then designs its own compliance plan using any combination of "building blocks": types of measures like improving the efficiency of fossil fuel power plants, switching out coal- and oil-fired power plants in favor of natural gas, and increasing low- and zero-carbon generation.

While the final Clean Power Plan's basic structure remains much the same, EPA has made some modifications in reaction to concerns about the greenhouse gas regulations' costs and impacts to grid reliability.

Changes from the 2014 draft include:

• Two extra years (until 2022) for states to meet their targets, and greater flexibility for states to form regional pacts to facilitate emissions-cutting projects across state lines, such as the Regional Greenhouse Gas Initiative.
• A new “safety valve” feature, to let states appeal for extensions and other relief if complying with the regulations causes disruptions to power supply.
• Increased social justice incentives for utilities to construct renewable energy projects in poorer neighborhoods, reducing pollution-related illness and eventually lowering electricity rates.
• Energy efficiency is still encouraged, but has been eliminated as one of the rule’s "building blocks” for states to use in building their own carbon-reduction plans.

How will the Clean Power Plan story continue to play out?  Will it be challenged in court?  Will states comply?  What impacts will it have on the U.S. electric power industry?

Texas small hydro project loses exemption

What happens to a proposed hydroelectric project takes longer than anticipated to be built, due to difficulties with project financing and severe flooding?  As the developer of a proposed project in Texas recently found out, federal regulators can be lenient up to a point -- but under some circumstances the developer can lose its federal authorization to develop and operate the project.

The A.H. Smith Dam on the San Marcos River in Martindale, Texas was originally constructed in about 1894 to provide mechanical power a cotton gin; later, electric generation was installed, but power production ceased in the 1940s when low wholesale energy prices made operation uneconomic.  Modern hydropower facilities rated at 150 kilowatts were installed in 1984, but were ultimately abandoned.

In 2005, developer Hydraco Power, Inc. applied to the Federal Energy Regulatory Commission for an exemption from the licensing requirements of Part I of the Federal Power Act for its proposed A.H. Smith Dam Project.  Hydraco's project included refurbishing and restoring the operation of the existing turbine located at the dam's powerhouse, installing a new buried transmission line and a water surface elevation gate in the headpond.

On June 2, 2006, the Commission granted Hydraco an exemption for the project.  As a standard condition of exemptions, the Commission retained the right to revoke the exemption if any term or condition was violated.  Among the terms was a requirement that Hydraco file within 120 days a
plan and schedule to install the new transmission line and restore the powerhouse, turbine, and trash racks to operating condition, as well as notice that the Commission could terminate the exemption if actual construction of any proposed or required facility had not begun within two years or had not been completed within four years of the date of issuance of the exemption.

Over the next 8 years, Hydraco filed a series of construction plans and schedules, but never completed the project despite obtaining repeated extensions of key deadlines.  After multiple prompts by Commission staff to file a revised plan and schedule for restoring project operation or an application to surrender the exemption, the Commission noted that Hydraco either failed to respond or responded by stating that it could not estimate a schedule for restoring project operation because project construction, including major component repairs, was on hold due to lack of funds.

After the Commission issued a public notice in August 2014 stating its intent to terminate the project exemption "due to Hydraco’s longstanding violation of exemption Article 10 and its failure to provide a timeframe for restoring project generation", on November 20, 2014, the Commission issued an Order Terminating Exemption. That order found that "Hydraco has only performed minimal work at the project since obtaining its exemption in 2006 and that it lacks the funding to proceed with the necessary component repairs, including construction of the powerhouse interior and generating unit."

Hydraco filed a request for rehearing of the Order Terminating Exemption.  On rehearing, Hydraco asserted that it had reached a financing agreement with a new investor and, consequently, it is ready to perform the work needed to comply with its exemption. Hydraco also objected to the findings that project construction was at a standstill and that Hydraco intended to abandon the project, noting that the Commission should excuse construction delays caused by severe flooding.

Last week, the Commission issued an Order Denying Rehearing in the case.  It first noted that Hydraco had not demonstrated that it now has the money needed to bring the project on line.  Not only did Hydraco not show evidence of a final financing agreement, but the documents showed a source of only half of the funding needed for project restoration.  Second, the Commission noted that Hydraco's recent activities -- regularly inspecting the dam and removing debris from its spillway, trashracks, and grates, securing the site against vandalism and installing lighting, and repairing damage caused by a flood -- are "either maintenance or repair, not project development."  Finally, the Commission articulated its "doctrine of implied surrender", which it applies where the entity responsible for the project has, by action or inaction, clearly indicated its intent to abandon the project, but has not filed a surrender application.

With the exemption terminated and Hydraco's request for rehearing denied, the A.H. Smith Dam project faces an uncertain future.  On the one hand, the site presumably still offers many of the same values that Hydraco hoped to capture -- use an existing dam, with existing generation facilities, to generate renewable electricity.  However, the loss of the FERC exemption means that Hydraco (or any other developer) will have to start the federal hydropower process over if it hopes to redevelop the dam as a hydroelectric generating site.

The case of the A.H. Smith Dam project illustrates a number of themes: interest in restoring existing hydropower infrastructure to generate renewable energy with relatively less environmental impact than newly-built dams, the challenge of securing financing for small hydropower projects -- and perhaps most importantly the value of compliance with FERC hydropower rules.

FERC and EPA's Clean Power Plan

Following the U.S. Environmental Protection Agency's 2014 proposal to regulate carbon emissions from electric power plants and other major sources, federal energy regulators have scheduled a series of public technical conferences on how the Clean Power Plan may affect electric reliability, wholesale electric markets and operations, and energy infrastructure.

On June 2, 2014, the U.S. Environmental Protection Agency announced the Clean Power Plan, its proposed rule under Section 111(d) of the Clean Air Act to reduce carbon emissions from the nation's power plants.  Designed to reduce carbon emissions 30 percent below 2005 levels by 2030, EPA's proposal would impose limits on each state's rate of carbon emissions per megawatt-hour of electric energy generated.

The Federal Energy Regulatory Commission regulates the transmission and wholesale sales of electricity in interstate commerce, monitors energy markets, and protects the reliability of the high voltage interstate transmission system.  Acting out of concern over the possible impacts of the EPA Clean Power Plan on its regulated sector, on December 9, 2014, the Commission scheduled a series of technical conferences to develop public comment on these issues.

First, the Commission will hold a National Overview technical conference on February 19, 2015, at its Washington, DC headquarters.  Earlier this month, the Commission issued a supplemental notice describing the agenda for the National Overview.  After an introduction by EPA, the Commission expects to discuss:

• Electric reliability considerations: How will the Clean Power Plan affect electric reliability?  How can the U.S. sustain reliability as states and regions develop their plans to comply with the proposed carbon rule?  How could state, regional, and federal plans for compliance affect grid operations?  What tools are available to identify potential reliability impacts?  How can reliability planning processes and compliance planning efforts  coordinated to address potential issues?  What is the Commission's role in this area?
• Identifying and addressing infrastructure needs: What potential infrastructure needs may arise from various state or regional compliance approaches?  How can any infrastructure needs met in a timely manner in order to ensure system reliability?  How can relevant planning entities, industry, and states coordinate reliability and infrastructure planning and siting processes with state and/or regional environmental compliance efforts to ensure the adequate and timely development of new infrastructure?  Are additional mechanisms needed to ensure timely development of new infrastructure? Are adaptations to current Commission policies needed to facilitate the infrastructure needed for compliance with the proposed Clean Power Plan?
• Potential implications for Commission-jurisdictional markets:  How could potential compliance approaches to the proposed Clean Power Plan impact Commission-jurisdictional electric and natural gas markets?  What aspects, if any, of the wholesale and interstate markets would facilitate implementation of state or regional compliance plans?  What tools are available to address market issues as they arise?  What opportunities are available to coordinate compliance approaches with Commission-jurisdictional markets to meet the requirements of the proposed Clean Power Plan rule?

Following the National Overview, the Commission has scheduled three regional conferences in February and March 2015.

FERC revokes hydro license over fish passage

What happens when the owner of a federally licensed hydroelectric project fails to build the fish passage facilities required by its license?  In the recent case of the East Juliette Hydroelectric Project in Georgia, the Federal Energy Regulatory Commission revoked the project's license, ending the owner's right to operate its generating equipment.

The East Juliette Hydroelectric Project is (or was) based around the East Juliette Dam on the Ocmulgee River, a tributary to the Altamaha River.  Built in 1921, the dam is hundreds of miles inland from tidewater -- but nevertheless represents the first passage barrier that anadromous fish, including American shad, encounter on their migrations upstream from the Atlantic Ocean to the Ocmulgee River.  State and federal fisheries agencies have identified restoring access to historical spawning habitat for American shad as one of their highest priorities for the region.

Since 1995, the East Juliette Hydroelectric Project has been owned by Eastern Hydroelectric Corporation.  The project facilities include a 20-foot-high, 1,230-foot-long concrete gravity dam that creates a 78-acre reservoir with a storage capacity of 418 acre-feet, and two powerhouses with a total installed capacity of 687 kW.

In 2002, the Federal Energy Regulatory Commission amended the project's license to authorize the construction of a new powerhouse and 1,200 kW generating unit.  As part of that amendment, the FERC added language to the project's license requiring the licensee to install new fish passage facilities at the East Juliette Dam.  Similar conditions were imposed by the Georgia Department of Natural Resources as part of its water quality certification for the amendment.

According to the recent FERC order, while the licensee proposed a plan to construct fish lift at the dam, it ultimately did not follow through with its plan.  At several points over the past 5 years, FERC staff licensee directed the licensee to comply or else face civil penalties, an order to cease operation of the project, or revocation of the license pursuant to section 31 of the Federal Power Act.

Under section 31(b) of the Federal Power Act, after notice and an opportunity for an evidentiary hearing, the FERC may issue an order revoking a license, where the licensee is found have knowingly violated a final order after having been given reasonable time to comply fully with that order.  In Eastern Hydro's case, FERC found that despite 12 years of intensive efforts by its own staff and other agencies, "these efforts have met with steady resistance from the licensee."

Ultimately, the FERC found that Eastern Hydro knowingly violated its compliance order and that it was given a reasonable time to comply with the order before FERC commenced the license revocation proceeding. As a result, FERC revoked Eastern Hydro’s license for the East Juliette Project.

While environmental conservation groups asked FERC to require the licensee to remove all project facilities that it owns, FERC declined to do so.  Instead, the FERC order requires that Eastern Hydro disable all of the project’s generating equipment to prevent operation of the project in violation of section 23(b)(1) of the Federal Power Act.  Following revocation of the license, the FERC's jurisdiction will end, and authority over the site will pass to the State of Georgia’s dam regulatory authorities.

The East Juliette case illustrates some of the most severe consequences of failure to comply with FERC hydropower licenses.  Without a license, the project cannot generate electricity, thus depriving the project of much of its value.

How New England plans to keep the lights on this winter

Concerns over the reliability of New England's electricity grid this coming winter have led the regional grid operator to develop a new program designed to ensure sufficient energy is available. While natural gas remains the dominant cost-effective fuel for electric generation in New England, grid operator ISO New England expressed concern over its ability to ensure a reliable supply of electricity in the event of a natural gas shortage or supply disruption. As a result, the grid operator launched a so-called Winter Reliability Program to compensate oil-fired generators, dual-fuel generators, and demand response resources for their promise to stand ready to serve if needed.  Is the program necessary?  If so, will it prove sufficient to protect consumers against power outages and high prices?

ISO New England's Winter Reliability Program plan was designed to address the reliability risks arising from constraints on the interstate pipeline system's ability to meet demands for natural gas deliveries into New England, increased reliance on natural gas-fired generation, and generating resource performance during periods of stressed system conditions.  While regional stakeholders are developing a longer-term fix for these risks, last winter highlighted the urgency of the problem, as natural gas pipelines supplying fuel to New England reached full capacity through the winter season, leaving natural gas more expensive and less available than it should be.

As a short-term solution, through its Winter Reliability Program, ISO New England will procure up to 2.4 million megawatt-hours of energy for the coming winter, from a combination of oil-fired generators, dual-fuel generators, and demand response assets.  In exchange for their commitment to provide power when called upon, the selected generators and demand response assets will receive payments regardless of whether they are actually needed this winter.

This program was conditionally accepted by the Federal Energy Regulatory Commission last month, after which the grid operator held its competitive bidding process. When the bidding settled, ISO New England had failed to procure commitments to provide as much energy as it had sought.  According to a FERC order accepting the bid results, market participants submitted bids totaling 2.29 million MWh, or 96 percent of the target, at a total offer price of $114.3 million.  ISO New England proposed to trim the offered supply farther, accepting bids from 20 participants for just 1.995 million MWh, or 83.1 percent of the target, for a total price of $78.8 million.

How did ISO New England reach this result?  According to the grid operator's filing to the FERC, the selected bids are all less than $31 per MWh-month.  ISO New England says that beyond this point, the supply curve became steeper, and the grid operator wanted to balance fuel security for the region against the costs to consumers.  But as the FERC found, ISO New England did not adequately explain its selection process, nor did it sufficiently describe why it cut off supply bids at $31 per MWh-month.  As a result, the FERC directed the grid operator to submit a compliance filing within 15 days describing its process in more detail.

Once ISO New England submits its compliance filing, we will have better insight into the selection process.  Further questions, such as whether the program will prove necessary or effective, cannot be answered until the winter season hits New England.  Will ISO New England's Winter Reliability Program yield consumers value in excess of its $78.8 million cost?

July 28, 2010 - Alta Wind Energy Center breaks ground; PACE financing

Today's picture: Central Maine Power transmission lines off Route 201 in Topsham, Maine.

In California, the Alta Wind Energy Center — with plans for thousands of acres of turbines to generate electricity for 600,000 Southern California homes — officially broke ground yesterday.  Here's the official project website, which is running a bit slowly today (likely due to all the interest in the project).  Terra-Gen Power, LLC does have a slick website that is worth checking out.  Some highlights include:

• The Alta Wind Energy Center (AWEC), under developed by Terra-Gen Power, is composed of multiple projects.  The first AWEC development is the Alta-Oak Creek Mojave Project.
• The Alta-Oak Creek Mojave Project will be composed of up to 320 wind turbine generators and supporting infrastructure.
• The Project will be developed primarily on privately-owned land adjacent to existing wind energy developments in the Tehachapi area of California.
• The Project is projected to add 50 full-time jobs to the Kern County economy.

 Interest in smart grid deployment is growing.  Federal policy supports smart grid development, and many states are following suit with more specific provisions.  For example, this spring, the Maine Legislature enacted LD 1535 (now P.L. 2009 Ch. 539).  This bill, sponsored by Representative Jon Hinck of Portland, gives Maine a specific smart-grid policy for the first time.  Both CMP and Bangor Hydro, Maine's largest investor-owned utilities are already rolling out smart meters; the legislative policy declaration builds upon this head start.

In enacting the smart grid bill, the Maine Legislature found that:

• The cost of electricity to consumers in this State is high in comparison to costs in similar markets and impedes economic development;
• The State has recognized the consequences of climate change and has committed to policies to reduce emissions of greenhouse gases;
• The State's electric grid and long-term infrastructure investment are vital to continued security and economic development, and smart grid functions will deliver electricity from suppliers to consumers using modern technology to increase reliability and reduce costs in a way that saves energy and to enable greater consumer choice;
• The State currently lacks a comprehensive smart grid policy but faces critical decisions regarding the implementation of smart grid functions and associated infrastructure, technology and applications, and the commission and the Legislature will play central roles in making those decisions; and
• It is vital that a smart grid policy be developed in order to ensure that all ratepayers and the State as a whole are afforded the benefits of smart grid functions and associated infrastructure, technology and applications.

Based on these findings, the Legislature enacted a policy of promoting the development, implementation, availability and use of smart grid functions and associated infrastructure, technology and applications in the State.

With this policy in place, the ball is now in the court of smart grid infrastructure developers.  We now have a law that will support roll-out of smart grid projects in Maine.  Who will be the first to propose one?

A bit of personal news, related to energy: an article I co-authored with a colleague and a client has been published in Paper360 Magazine. Click through to read about how a pulp and paper mill navigates the waters of compliance with the Regional Greenhouse Gas Initiative (RGGI) and other climate change regulation.



How about PACE financing? PACE-promoting provisions got stripped out of the current Senate energy bill. These tweaks are viewed as necessary to let PACE programs flourish, as government-backed lenders Fannie Mae and Freddie Mac have suggested that they won't play with PACE.