For decades, Balch & Bingham has provided advice and counsel to clients concerning the full range of issues related to hydropower projects licensed under Part 1 of the Federal Power Act. Our clients have included large investor-owned utilities, industrial licensees, a paper company and developers of new hydro technology projects. We provide our clients with legal advice and services that reflect our full understanding of the regulatory, policy, political, environmental and operational issues unique to their business.
The Firm’s hydropower licensing attorneys regularly assist clients in the following general areas:
Licensing and Relicensing - The Firm has extensive experience counseling clients as they seek to license and relicense hydropower projects under the Federal Power Act. In recent years, our lawyers have advised applicants on the procedural and substantive requirements of FERC’s Traditional Licensing Process, the Alternative Licensing Process, the new Integrated Licensing Process, and the preliminary permit application process. We have assisted these clients in strategy development; issue identification and resolution; negotiations with stakeholders; drafting settlement agreements and other licensing documents; and appealing unfavorable license terms and conditions.
License Compliance, Administration and Amendment - The Firm’s attorneys advise clients concerning all manner of license compliance and administration issues, including annual charges, headwater benefits, shoreline permitting, water withdrawal compensation and dam safety. In addition, our attorneys assist clients in license amendment proceedings before FERC involving such issues as capacity and non-capacity amendments, joint use authorizations, modifications to license exhibits and changes to project land use classifications.
Ocean, In-stream Hydrokinetic and New Technology Development - Our lawyers also advise clients who develop projects that utilize new technologies, including ocean and in-stream hydrokinetic technology. We have filed some of the first preliminary permit applications at FERC for in-stream hydrokinetic projects, and are advising clients with regard to FERC jurisdiction and other issues related to the development of ocean-based hydro projects. The Firm has also counseled clients concerning their eligibility for federal production tax credits for these new hydropower technologies.
Environmental - Among the most challenging aspects of current day hydropower licensing is compliance with federal and state environmental laws and regulations. The Firm’s lawyers have significant experience in all of the laws and regulations applicable to the licensing, development and operations of a hydropower project, including the Clean Water Act, the National
Environmental Policy Act and the Endangered Species Act. The Firm frequently counsels clients on environmental permitting and permit compliance issues, and represents clients before state and federal courts and in agency administrative proceedings on environmental issues related to hydropower project operations.
Legislation - Our lawyers have been deeply involved in all significant hydropower-related amendments to the Federal Power Act since its enactment in 1920. In recent years, the Firm’s attorneys played a leading role in the passage of the Electric Consumers Protection Act of 1986, which amended the Federal Power Act to clarify relicensing preference issues. The Firm also was actively involved in the hydropower industry’s legislative effort to obtain licensing reform and production tax and other incentives in the Energy Policy Act of 2005. During this process, one of the Firm’s attorneys testified on behalf of the hydropower industry before Congress on the impact of the hydro licensing reform provisions of the Act. In addition to Federal Power Act legislative issues, Firm attorneys have significant experience in analyzing and drafting amendments to environmental legislation that affects hydropower licensing and project operations such as the reauthorization of the Clean Water Act and the Endangered Species Act.
Industry and Policy Issues - The Firm’s attorneys have also engaged in most every FERC hydropower rulemaking and policy statement during the past twenty years by participating in FERC meetings and inquiries and by filing written comments on FERC proposals. In many of these proceedings, our attorneys have worked closely with hydropower industry trade associations such as the National Hydropower Association and the Edison Electric Institute to help shape industry policy and responses to FERC’s proposals. In addition, the Firm has helped draft numerous industry amicus curiae briefs submitted to the United States Supreme Court and other federal courts on issues of interest to the hydropower community.