Commissioner James Danly Statement
January 20, 2023
Project No. 4451-024
I concur with today’s order[1] issuing Green Mountain Power Corporation and City of Somersworth a subsequent license to continue to operate and maintain the Lower Great Falls Hydroelectric Project. I write separately to express a few concerns.
First, it occurs to me that perhaps Maine Department of Environmental Protection (Maine DEP) waived certification by failing to act on the licensees’ request within one year. Maine DEP received the licensees’ request on April 6, 2021. Historical recitations in opinions by two circuit courts suggest that the last day of the one-year deadline would have been April 5, 2022.[2] Maine DEP issued its water quality certification one day later, on April 6, 2022. If Maine DEP did indeed waive certification, the Commission could not have accepted its terms as mandatory, and instead, would have had to consider whether the license, with Maine DEP’s water quality terms, would be best adapted to a comprehensive plan for improving or developing a waterway under section 10(a) of the Federal Power Act (FPA).[3]
Second, I note that the Commission finds a certain recommendation filed by the Department of the Interior under section 10(j) of the FPA[4] to be “outside the scope” of that section and instead considers it under FPA section 10(a)(1).[5] As I have previously stated,[6] I have misgivings about this practice.
Finally, I write to express my concern about Article 202, which reserves authority for the Commission to impose financial assurance mechanisms without any limiting principle.[7] As I have previously stated,[8] this reservation may have the unfortunate effect of reinforcing uncertainty and limiting licensees’ access to the very financing we should seek to encourage. It is imperative that the Commission take a hard look at our financial assurance requirements and deliberately determine what, if any, changes or improvements should be adopted.
For these reasons, I respectfully concur.
[1] Green Mountain Power Corp., 182 FERC ¶ 61,024 (2023) (GMP).
[2] See Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 966 (D.C. Cir. 2011) (“Alcoa Power . . . on May 8, 2008 . . . . re-fil[ed] its [water quality certification] request. . . . The Division of Water Quality issued a new certification on May 7, 2009, the last day of the one-year period.”); FPL Energy Maine Hydro LLC v. FERC, 551 F.3d 58, 60 (1st Cir. 2008) (in a proceeding where the water quality certification application was dated November 15, 2002, the court stated, “on November 14, 2003 (the last day a decision could be reached before the one-year deadline expired) . . . .”); see also FPL Energy Maine Hydro LLC, Copy of Water Quality Certification Request, Project No. 2612-005 (filed December 27, 2002) (Accession No. 20030106-0395).
[3] See 16 U.S.C. § 803(a); S. Feather Water & Power Agency, 171 FERC ¶ 61,242 (2020) (“As we have long held, once a state agency has waived its authority to act on a water quality certification application, the water quality conditions are not mandatory and acceptance of the conditions is a matter with the Commission’s discretion. Accordingly, we will consider all of the November 30, 2018 certification conditions as recommendations under FPA section 10(a)(1) in the relicensing proceeding.”) (citations omitted). See also GMP, 182 FERC ¶ 61,024 at P 97 (explaining that the Environmental Assessment did not recommend Maine DEP’s water quality plan).
[4] 16 U.S.C. § 803(j).
[5] GMP, 182 FERC ¶ 61,024 at PP 80, 88-93.
[6] See, e.g., Cornell Univ., 176 FERC ¶ 61,186 (2021) (Danly, Comm’r, concurring in part and dissenting in part at P 2).
[7] See GMP, 182 FERC ¶ 61,024 at P 130 & Ordering Para. G (listing additional license articles, including Article 202 which provides “The Commission reserves the right to require future measures to ensure that the licensee maintains sufficient financial reserves to carry out the terms of the license and Commission orders pertaining thereto.”) (emphasis added).
[8] See, e.g., Pub. Util. Dist. No. 1 of Pend Oreille Cnty., 177 FERC ¶ 61,183 (2021) (Danly, Comm’r, concurring at PP 1-3).