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Army Corps of Engineers Requests Rehearing of FERC Order regarding Applicability of FPA Section 215 to Federal Entities

On November 16, 2009, in FERC Docket No. NP09-26-000, the United States Army Corps. of Engineers (“USACE”) requested rehearing of FERC’s October 15, 2009 Order, in which the Commission found that, pursuant to FPA Section 215, federal entities that use, own, or operate the Bulk Power System must comply with mandatory Reliability Standards.  The Commission’s October 15 Order was issued in response to NERC’s June 24, 2009, Notice of Penalty (NOP) and Request for Decision on Jurisdiction Issue concerning USACE– Tulsa.


In its Request for Rehearing, the USACE argues: (1) that the Commission’s October 15 Order is procedurally defective because FERC’s Rules of Procedure do not provide for declaratory judgment in an NOP proceeding; (2) the US Department of Justice, Office of Legal Counsel is the proper forum to decide disagreement between federal agencies; and (3) Neither USACE nor Congress has explicitly or tacitly waived USACE’s sovereign immunity.  To read the entire text of USACE’s Request for Rehearing, click here.