In the first weeks of the 115th Congress, seeking to fulfill campaign promises made by both Congressional Leaders and President-Elect Trump, the U.S. House of Representatives passed a set of bills that would significantly alter the process by which regulations are reviewed by Congress and the courts.  Two bills are likely to form the basis for any regulatory reform efforts in Congress this session: H.R. 26, the “Regulations from the Executive in Need of Scrutiny (REINS) Act” and H.R. 5, the “Regulatory Accountability Act of 2017.”  The Regulations from the Executive in Need of Scrutiny Act The primary purpose and effect of the REINS Act would be to shift the burden of approving regulations from the Executive Branch to Congress.  Regulations would... READ MORE
On December 9, 2016, lawyers for Dakota Access, LLC (Dakota Access), the U.S. Army Corps of Engineers (Corps), the Standing Rock Sioux Tribe (Tribe), and the Cheyenne River Sioux Tribe appeared before the U.S. District Court for the District of Columbia (District Court) to address Dakota Access’s Motion for Summary Judgment (Motion) and Expedited Motion to Supplement the Administrative Record.  In the Motion, Dakota Access claims that the Corps attempted to block construction of the Dakota Access Pipeline Project (DAPL) underneath Lake Oahe, in North Dakota, by purporting to withhold authorization that the Corps had, in fact, already granted. Dakota Access argues that the Corps completed all of the necessary determinations when it approved the... READ MORE
On October 6, 2016, the Washington State Supreme Court issued its long-awaited decision in Whatcom County v. Hirst (“Hirst”).  In a split decision, the majority of the Court concluded that the Growth Management Act (“GMA”) requires counties to play an expansive role in the regulation of water availability and water quality.  The outcome of this case will likely force local governments to increase the level of analysis of water availability and impacts during their review of building permit and subdivision applications.  The decision is the culmination of an appeal initiated by a group of individual property owners and the public interest group Futurewise (collectively “Petitioners”), who challenged the adequacy of Whatcom County’s comprehensive... READ MORE
“Development of Washington’s shorelines triggers overlapping and sometimes inconsistent local, state and federal regulations, as well as tribal treaty rights. Proponents of small private projects as well as large public facility projects in shoreline environments can be affected equally by these layers of regulation. Meanwhile, regulators and treaty tribes are tasked with balancing the many legitimate uses of the state’s shorelines and their abundant natural resources." Van Ness Feldman's Tadas Kisielius is speaking on, "Recent Developments in Port Management." Click here for more information. READ MORE
Van Ness Feldman's T.C. Richmond is part of a panel that will discuss the merits of various legal approaches to addressing the climate-related challenges that water infrastructure faces nationwide.   Click here for more conference information and to register. READ MORE
T.C. Richmond is presenting “What Next for Council on Environmental Quality (CEQ) Final Guidance on Greenhouse Gases and Climate Change Impacts” at LSI’s intensive SEPA/NEPA seminar, January 13, 2017 in Seattle.  Special topics will include the federal FAST Act designed to expedite the NEPA process for major infrastructure projects; the Council on Environmental Quality's Final Guidance on Greenhouse Gases and Climate Change Impacts; unresolved issues in SEPA administrative and judicial appeals, exemplified by a recent SEPA challenge of Okanogan County's All-Terrain Vehicle Ordinance; and the impact of SEPA on the development of affordable housing. READ MORE
On December 24, 2016, our dear friend, colleague, and mentor, Bob Nordhaus passed away.  Please click to read remembrances received by the firm in the days that have followed Bob's passing.   READ MORE
As we look forward to the possibilities a New Year brings, we pause to give thanks to our clients, former colleagues, and friends who have formed our professional family over the past 40 years.   READ MORE
By Emily Pitlick Mallen On December 15, 2016, the Federal Energy Regulatory Commission (FERC) initiated a Notice of Inquiry Regarding the Commission’s Policy for Recovering Income Tax Costs (Inquiry). The Inquiry seeks comments regarding how FERC should address any double recovery of income tax costs that may result from FERC’s application of its Policy Statement on Income Tax Allowances (Policy Statement), in effect since 2005. FERC seeks comment regarding how it can allow regulated entities to earn an adequate return on equity that does not result in a double recovery of investor-level taxes for partnerships and other pass-through entities. Comments will be due within 45 days of the date the Inquiry is published in the Federal Register. Reply... READ MORE
FERC FERC Adjusts Civil Monetary Penalty Amounts - January 9 - FERC issued an interim final rule to amend its regulations governing the maximum civil monetary penalties that can be imposed for violations of statutes, rules and orders within the Commission's jurisdiction. The penalties were adjusted for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.   The rule will become effective upon publication in the Federal Register. FERC Approves Interpretation of "Shared BES Cyber Systems" - December 27 - FERC issued a letter order approving the interpretation of the phrase "shared BES Cyber Systems" in Reliability Standard CIP-002-5.1a (Cyber Security - BES Cyber System Categorization).  NERC states... READ MORE
Legislative Update Before the 114th Congress adjourned in December 2016, the House and Senate were unable to agree on a conference report that would have represented the first comprehensive energy legislation to be enacted since 2007.  As described in previous editions of the Hydro Newsletter, both the Senate-passed Energy Policy Modernization Act (S. 2012) and the House amendment to that legislation (which included H.R. 8, the North American Energy Security and Infrastructure Act) contained hydro licensing reform provisions, among other provisions of interest to the hydro sector.  Although the hydropower provisions enjoyed broad bipartisan support, House and Senate conferees ultimately were unable to resolve legislative differences in their... READ MORE
FERC Final Rule on Critical Energy Infrastructure Information – December 21 – FERC issued a final rule amending its regulations to implement provisions of the Fixing America’s Surface Transportation Act (“FAST Act”) that pertain to the designation, protection, and sharing of Critical Electric Infrastructure Information (“CEII”). The amendment includes procedures for submitting, designating, handling, sharing and disseminating CEII submitted to or generated by the Commission. The rule becomes effective on February 21, 2017. FERC Releases 2016 Reliability Primer - December 8 - FERC staff released its 2016 "Reliability Primer," which provides an overview of FERC's role in overseeing the nation's bulk power system.  The reports discusses FERC's... READ MORE