Legal & Regulatory Updates
NW Hydro Generation
Legal & Regulatory Updates
Attorney members of NWHA are invited to post legal updates or
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A unanimous 9-0 vote in the United State Supreme Court reversed the earlier decision by the Montana Supreme Court in the case PPL Montana v. the State of Montana. The decision reverses the state's decision that the lands in question became state lands when Montana entered the union. The decision by the U.S. Supreme Court asserted the federal authority to determine Congress' power to regulate interstate commerce on the basis of regulation of interstate commerce. The case further asserts that rivers must be analyzed on a segment-by-segment basis and that the state's trust powers have no bearing on federal law determining riverbed title under the equal footing doctrine. The case was remanded for further proceedings consistent with the decision. NWHA was a party to an industry brief detailed below.
Files Amicus Brief in Supreme Court
Montana PPL v. Montana
September 6, 2011
Subject: Supreme Court Amicus Brief Opportunity
On June 20, the Supreme Court granted cert. in the PPL Montana v. Montana lawsuit.
NWHA joined onto an amicus brief because of the importance of the underlying issue. The U.S. Supreme Court will be reviewing whether the Montana Supreme Court erred in concluding that riverbeds occupied by PPL Montana's hydroelectric facilities are the property of the State of Montana because they were navigable for title purposes at the time Montana became a State.
This case involves Montana state court litigation resulting from claims made by the State of Montana seeking to require Petitioner to pay a portion of its revenues as “rent” and “back rent” for use of the streambeds under certain of PPL Montana’s dams and reservoirs. The case focuses on two hydropower projects * Thompson Falls (P-1869) and Missouri-Madison (P-2188) * with facilities on the Missouri, Madison, and Clark Fork Rivers. The projects were initially licensed in 1949 (P-1869) and 1956 (P-2188), and later issued renewed, long-term licenses by FERC. The total acreage upon which PPL Montana has been ordered to pay rent to the State is approximately 5,600 acres. This acreage includes all areas within the FERC-established project boundaries that formed the streambed prior to construction of the dams.
The State of Montana has laid claim to the ownership of the original beds and banks of the entire Madison, Missouri and Clark Fork Rivers, asserting that it owns those lands in trust for the people of Montana, even though the relevant portions of those rivers have historically been understood to have been non-navigable for title purposes at the time of Montana’s statehood in 1889. The State’s claim of ownership was confirmed by a divided decision of the Montana Supreme Court interpreting federal title navigability law and asserting ownership (and the concomitant right to charge rent for past and future occupation) of the riverbeds.
The amicus brief agrees with PPL Montana that the Montana Supreme Court’s decision conflicts with the decisions of this Court and other courts. The brief also points out that if the State court’s decision is not corrected, the decision has the potential of being adopted by other States, thereby imposing even more substantial and disruptive burdens on the nation’s hydropower and other infrastructure.
ESA Law Alert: Federal Agencies Plan Changes to ESA Regulations
June 1, 2011
On May 26, 2011, the U.S. Fish and Wildlife Service and the
National Oceanic and Atmospheric Administration Fisheries
Service (the "Services") launched a joint effort to identify and
implement administrative changes to regulations promulgated
under the Endangered Species Act ("ESA"). According to the
Services, the effort is aimed at accelerating the recovery of
threatened and endangered species, enhancing on-the-ground
conservation efforts, and better engaging the Services' and
their partners' resources to meet ESA goals. This includes
enhancing efficiency, clarity, and consistency in agency
regulations and actions, and encouraging innovative and
cooperative solutions to ESA challenges.
April 15, 2011
The U.S. Department of the Treasury has issued revised guidance,
including additional frequently asked questions (FAQs),
concerning the Section 1603 grant in lieu of tax credits. The
guidance confirms and clarifies several significant issues for
anaerobic digestion facilities and other facilities that
generate electricity from gases or liquids derived from
open-loop biomass or municipal solid waste.
FERC Hardens Stance on Overdue Hydro Progress Reports
John Clements, Chuck Sensiba, Van Ness Feldman
January 24, 2011
On January 20, 2011, the Federal Energy Regulatory Commission
rehearing of FERC staff's decision to cancel a preliminary
permit in a case where the
permit holder failed to file a progress report that was required
under the permit.
For more information: If you would like additional information,
please contact Chuck Sensiba
or John Clements at 202-298-1800 (Washington, D.C.) or Matt Love
in the Seattle office
at 206-357-1482. Matt Love is the current General Counsel of the
NMFS Announces Plan to Proposed Critical Habitat Designations
for Columbia River Salmon and Puget Sound Steelhead
Stoel Rives Endangered Species Law Group
January 20, 2011
On January 10, 2011, the National Marine
Fisheries Service (NMFS) issued an advanced notice of proposed rulemaking (ANPR) announcing the agency's plan to
prepare critical habitat designation proposals for lower Columbia River (LCR) coho salmon and Puget
Sound steelhead, two species currently listed as threatened under the Endangered Species Act
For more information: Contact Barbara Craig in Stoel Rives'
Portland Office at 503-294-9166. This is a legal news alert from the Stoel Rives Endangered
Species Act Law Group, Seattle and Portland offices.
D.C. Circuit Vacates FERC’s Federal Land Fees Schedule
by Chuck Sensiba and Henry Stern, Van Ness Feldman
On January 4, 2011, the U.S. Court of Appeals for the District
of Columbia Circuit vacated the Federal Energy Regulatory Commission’s (FERC) 2009 final rule
establishing annual charges for hydropower
projects operating on federal lands.
Bulletins posted on this page are for the benefit of information
to our members and do not constitute legal advice or a legal opinion, and neither creates nor
constitutes evidence of an attorney-client relationship, but are for informational purposes only.
Legal & Regulatory Committee
The Legal and Regulatory Committee recommends actions to the
NWHA board on legal issues or regulatory rulemaking. Contact NWHA
staff for more information.
Van Ness Feldman
719 Second Avenue, Suite 1150
Seattle, WA 98104
TEL: (360) 357-1482
FAX: (206) 623-4986