Hydropower

Experienced Legal Counsel in the Hydropower Industry

For over 25 years, Van Ness Feldman’s hydroelectric practice has provided comprehensive legal, policy and business advisory services for the full range of issues facing the hydropower industry.  Boasting one of the nation’s largest and most experienced hydroelectric practices, attorneys and other professionals at Van Ness Feldman—whose current and recent matters directly involve hydroelectric projects constituting nearly 40 percent of all hydropower installed capacity in the United States regulated by the Federal Energy Regulatory Commission (FERC)—assist clients in:

• FERC licensing and relicensing proceedings
• Regulatory compliance, including enforcement proceedings
• Dam safety and infrastructure security
• Asset transactions, including license transfers and due diligence review
• Design and development of public policy strategies
• Litigation before state and federal courts
• Administrative litigation, including trial-type hearings under the hydropower reform provisions of the Energy Policy Act of 2005 (EPAct)

Our clients represent the full range of participants in the hydropower industry, from large corporations and state and municipal agencies, to individual developers, including:

• Government-owned electric utilities
• Investor-owned electric utilities
• Independent power producers
• Water supply agencies

Broad Perspective on Complex Issues

Van Ness Feldman knows the hydropower industry and offers the unique combination of legal pragmatism, practical expertise, and political perspective to help our clients identify effective solutions to emerging business problems.  Van Ness Feldman also understands how the key regulatory agencies work, and has developed relationships at both the policy and career staff levels of agencies such as FERC, the Department of the Interior, and other federal and state agencies.  Throughout our various representations, we offer clients a unique perspective on the complex interplay of judicial, policy, and regulatory developments in the hydropower sector that affords clients a broad range of legal alternatives.

Attorneys in Van Ness Feldman’s hydroelectric practice have particular experience with: 

Licensing and Relicensing.  Van Ness Feldman has participated in hundreds of hydropower licensing proceedings in all regions of the country.  As experienced advocates before FERC, attorneys in the firm’s hydroelectric practice have utilized FERC’s Integrated Licensing Process (ILP), as well as the Traditional Licensing Process (TLP) and Alternative Licensing Process (ALP).

Environmental and Resource Allocation Issues.  Van Ness Feldman has extensive experience navigating federal environmental programs applicable to hydropower facilities, including the Federal Power Act (FPA), National Environmental Policy Act (NEPA), Clean Water Act (CWA), Endangered Species Act (ESA), National Historic Preservation Act (NHPA), and Coastal Zone Management Act (CZMA). 

Settlement Strategy and Negotiation.  Van Ness Feldman has considerable experience negotiating and preparing multiparty settlements in licensing and relicensing proceedings.  Our insight, objectivity, and understanding of technical issues have helped our clients resolve some of the largest, complex, and highly publicized relicensing proceedings in the industry. 

Litigation.  Van Ness Feldman is an effective advocate before FERC, the U.S. Supreme Court, the U.S. courts of appeal, federal district courts, state courts, and federal and state administrative and resource agencies.  The firm is particularly well-suited to provide counsel and representation in trial-type hearings under EPAct, as it represented the hydroelectric licensee in the first full hearing under these new procedures. 

Regulatory Compliance.  Van Ness Feldman advises clients on regulatory interpretation and compliance matters and serves as counsel in agency proceedings involving federal dam safety requirements, FERC jurisdiction, civil penalties, annual charges, and headwater benefits. 

Asset Transactions.  Van Ness Feldman has significant experience with the negotiation of mergers, acquisitions, and other asset transactions.  The firm also has conducted due diligence reviews on behalf of investment firms investing in, or conveying, hydro assets.  In addition to this transactional experience, we are able to facilitate the regulatory approvals needed to complete asset transactions. 

Public Policy.  Over the past two decades, Van Ness Feldman has worked on every major piece of federal energy legislation affecting the regulation of hydropower facilities, including EPAct.  The firm also has led successful efforts to obtain targeted legislation for its clients, and has participated in numerous FERC and other federal agency rulemakings.

Representative Matters

Recent matters in which attorneys in the firm’s hydroelectric practice have been actively involved include:

• New York Power Authority (NYPA).  The firm serves as relicensing and compliance counsel for the 2,400 MW Niagara Power Project (including the 240 MW Lewiston Pumped Storage Plant), the largest FERC-licensed project in the United States, as well as NYPA’s 912 MW St. Lawrence-FDR Power Project.  During the relicensing of these facilities, our work consisted of early strategic planning; guidance through FERC’s relicensing processes; scoping of studies; assistance in preparing the relicensing application; outreach to federal and state resource agencies and Indian tribes; and negotiating and preparing documents for a comprehensive settlement agreement among federal and state resource agencies and stakeholder interests.  For each project, FERC approved the settlement and issued a new 50-year license before the expiration of the current license.
• PacifiCorp.  The firm serves as relicensing, litigation, and compliance counsel for PacifiCorp.  Recently, the firm represented PacifiCorp in an EPAct trial-type hearing for the Klamath Project, and successfully defended the North Umpqua Project relicensing settlement agreement before the U.S. Court of Appeals for the Ninth Circuit.
• Exelon.  The firm serves as FERC relicensing counsel for the relicensing of the 550 MW Conowingo Project and 880 MW Muddy Run Pumped Storage Project, both of which will be relicensed using FERC’s ILP.
• American Municipal Power – Ohio (AMP – Ohio).  The firm serves as licensing and compliance counsel for AMP – Ohio’s new project development activities on the Ohio River, including the 72 MW Smithland Project, 84 MW Cannelton Project, 35 MW Willow Island Project, and 48 MW R.C. Byrd Project.
• Snohomish County Public Utility District (Snohomish).  The firm represents Snohomish in its relicensing of the 112 MW Jackson Project in Washington State, one of the first relicensings to use FERC’s ILP.
• Annual Charges Litigation.  The firm successfully represented a consortium of hydropower licensees before FERC and the U.S. Court of Appeals for the D.C. Circuit regarding FERC’s annual charges program, which concluded in 2006 and resulted in over $10 million in refund credits and substantially reduced annual charges bills.
• California Department of Water Resources (DWR).  The firm serves as relicensing and compliance counsel for the 763 MW Oroville Facilities.  We assisted DWR in negotiating a comprehensive relicensing settlement agreement, which is presently pending before FERC.
• Toledo Bend Project Joint Operations.  The firm serves as relicensing and compliance counsel for the 86 MW Toledo Bend Project.  The firm successfully defended the Sabine River Authorities of Texas and Louisiana in a recent challenge mounted at FERC by lakeside homeowners and downstream residents at the Toledo Bend Project.  The challenge sought wholesale changes to project operations in a manner that would have significantly reduced operational flexibility and generation.
• Sacramento Municipal Utilities District (SMUD).  The firm serves as relicensing and compliance counsel for SMUD’s multi-unit Upper American River Project in California.  In the relicensing proceeding, our work consisted of early strategic planning; guidance through the ALP; scoping of studies; assistance in preparing the relicensing application, which includes a proposal for a new 400 MW pumped storage unit; and negotiating and preparing settlement documents for a comprehensive settlement agreement.
• City of Tacoma.  The firm serves as relicensing, litigation, and compliance counsel for the 131 MW Cushman Project.  Additionally, the firm served as litigation counsel for the 462 MW Cowlitz River Project.