Hydropower

Balch & Bingham has decades of experience advising and counseling clients concerning issues related to hydropower projects licensed under Part 1 of the Federal Power Act. Clients include large investor-owned utilities, industrial licensees, irrigation districts, electric cooperatives, manufacturing facilities and developers of new hydro technology projects. We provide clients with legal advice and services that reflect our full understanding of the regulatory, policy, political, environmental and operational issues unique to their business.

Balch’s Hydropower Energy Practice focuses on the following legal services:

• Federal Power Act compliance
• Hydropower licensing and relicensing strategy
• FERC licensed hydroelectric projects
• Permit applications
• License compliance guidance
• Shoreline permitting
• Dam safety compliance
• Water withdrawals from reservoirs
• New technology development, ocean and in-stream hydrokinetic 
• Production tax credit eligibility
• Clean Water Act compliance
• Endangered Species Act issues
• Environmental permitting and litigation support
• Fish passage trial-type hearings
• Energy Policy Act counsel
• Hydro project due diligence review
• License transfer proceedings
• Hydropower legislation drafting
• Electric Consumers Protection Act
• Clean Water Act 
• FERC hydropower rulemaking and policy Issues

Select Experience

Licensing and Relicensing

Balch attorneys frequently counsel clients as they seek to license and relicense hydropower projects under the Federal Power Act, including pumped storage hydro projects. We advise applicants on the procedural and substantive requirements of FERC’s Traditional Licensing Process, the Alternative Licensing Process, the Integrated Licensing Process, and the preliminary permit application process. We assist 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 

We counsel clients with all issues concerning FERC hydro license compliance and administration, including annual charges, headwater benefits, shoreline permitting, water withdrawal compensation, water rights, and dam safety. Additionally, our attorneys assist 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 

Balch’s Hydropower Energy Practice has experience with developing projects that utilize new technologies, including ocean and in-stream hydrokinetic technology. We filed some of the first preliminary permit applications at FERC for in-stream hydrokinetic projects and have advised clients with regard to FERC jurisdiction and other issues related to the development of ocean-based hydro projects. Balch has also counseled clients concerning their eligibility for federal production tax credits for these new hydropower technologies.

Compliance with Environmental Laws

Among the most challenging aspects of current day hydropower licensing is compliance with federal and state environmental laws and regulations. Balch attorneys have significant experience in all 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.  Frequently, Balch is hydropower legal counsel 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 hydroelectric project operations.

Fish Passage Mandatory Condition Trial-Type Hearings

The Firm counsels clients with respect to trial-type hearings to resolve disputed issues of material facts in the context of a federal agency’s mandatory conditioning authority under Section 18 of the Federal Power Act.  Our hydroelectric attorneys helped a client successfully resolve one of the first trial-type hearing proceedings after this process became available to license applicants through the Federal Power Act amendments in the Energy Policy Act of 2005.

Due Diligence Review

Balch advises clients with due diligence review relating to the potential acquisition of hydro project licenses and assets and with license transfer proceedings at FERC.

Legislation

Our attorneys have been deeply involved in all significant hydropower-related amendments to the Federal Power Act since its enactment in 1920. Balch attorneys played a leading role in the passage of the Electric Consumers Protection Act of 1986.

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 our attorneys testified on behalf of the hydropower industry before Congress on the impact of the hydro licensing reform provisions of the Act. 

Balch's attorneys have significant experience 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

Our hydroelectric attorneys have engaged in most every FERC hydropower rulemaking and policy statement during the past forty years by participating in FERC meetings and inquiries and by filing written comments on FERC proposals. Our attorneys work 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 and other federal agency proposals. 

Balch has helped draft numerous industry amicus curiae briefs submitted to the United States Supreme Court and other federal courts on issues of importance to the hydropower industry.