On Friday, September 23, the Department of the Interior (Interior), Bureau of Indian Affairs (BIA), in conjunction with the Department of Justice (DOJ) and the Department of  the Army (Army), released a “Dear Tribal Leader” letter (Letter) that initiated a government-to-government consultation seeking “Tribal Input on Federal Infrastructure Decisions.”  The consultations will begin October 11, 2016 and proceed along an extraordinarily compressed schedule, with a total of seven sessions completed by November 21, 2016, all in cities in the western U.S., and one by teleconference.  The Letter invites representatives of 562 federally-recognized tribes to participate in the consultation sessions, and refers to the consultation schedule as appropriately... READ MORE
Introduction On September 26, 2016, the Environmental Protection Agency (“EPA” or “Agency”) finalized a rule, Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act (“Final Rule”), which authorizes tribes to administer the Clean Water Act (“CWA”) section 303(d) program within their reservations.  The 303(d) program requires states (and now possibly tribes) to identify lists of impaired waters (“Impaired Waters”) within their jurisdiction and subsequently to create Total Maximum Daily Loads (“TMDLs”) for those waters.  TMDLs represent the total amount of pollution Impaired Waters can withstand and still remain in compliance with other EPA CWA programs.  The Final Rule affords qualifying tribes... READ MORE
A dramatic and surprising turn of events on Friday, September 9, 2016 created significant uncertainty for the Dakota Access Pipeline Project (Dakota Access), and may have shifted the landscape for other infrastructure projects involving National Historic Preservation Act (NHPA) Section 106 tribal consultations.  On Friday afternoon, U.S. District Court Judge James E. Boasberg issued a 58-page Memorandum Opinion (Opinion) denying the Standing Rock Sioux Tribe’s motion for preliminary injunction filed against the U.S. Army Corps of Engineers (Corps).  That motion challenged whether the Corps complied with NHPA Section 106 consultation requirements in connection with a July 25, 2016 verification letter permitting  Dakota Access to engage in certain... READ MORE
Michael Pincus and Bryn Karaus will both be featured speakers at EBA's upcoming Primer: An Introduction to Federal Regulation of the Natural Gas Industry.  The goal of the primer  is to provide an overview of the federal regulation of the natural gas industry by the Federal Energy Regulatory Commission. Mike will lead a session on constructing and abandoning pipelines under the Natural Gas Act and Bryn will be speaking on pipeline safety regulation. For more information and to register, please visit EBA's website. READ MORE
Jay Derr will be presenting “Energy on the Columbia River” at The Mighty Columbia Conference, Friday, Oct 28th in Seattle, WA. The Columbia River is the largest river in the Pacific Northwest, and the 4th largest river in the United States. It drains an area the size of France, and extends into seven states and British Columbia. The River serves as critical habitat for 13 ESA-listed species of salmon and steelhead, and is of paramount importance to Native cultures, serving as a bountiful source of tribal subsistence. The River is also home to 14 Federal hydroelectric dams on the mainstem, providing 44% of hydropower consumed in the U.S. It is of critical importance to navigation interests, providing a navigable highway for the transportation of... READ MORE
Susan Olenchuk and Bob Christin will be featured instructors at New Mexico State University's The Basics of FERC Ratemaking for Interstate Pipelines course being held in Albuquerque October 10-13th.   The three day course is designed to capture the nuances of the natural gas pipeline industry and includes an overview of topics such as FERC ratemaking authority under the Natural Gas Act and FERC regulation of pipeline construction.  For more information and to register, please click here. READ MORE
Charles Curtis , Van Ness Feldman Co-Founder and former Chairman of the Federal Energy Regulatory Commission (FERC), was recently interviewed by FERC’s Mary O’Driscoll on the history and creation of FERC.  Mr. Curtis served as the first Chairman of FERC from 1977 to 1981 and was later Deputy Secretary of the U.S. Department of Energy before taking on his current role as Vice Chairman of the U.S. Department of State’s International Security Advisory Board. The podcast, entitled, “Charles Curtis:  Forty Years of FERC” is available for listening here.  A transcript of the podcast can also be read here. READ MORE
WASHINGTON, D.C. – Van Ness Feldman LLP is pleased to announce that Michael D. Farber, a former senior official from the U.S. Department of the Interior, has joined the firm as a partner, specializing in strategic advice, investigations, and litigation.  Mr. Farber brings twenty years of experience rapidly assessing, investigating, and resolving compliance issues across a wide variety of industries. As a partner with Van Ness Feldman,  Mr. Farber will collaborate across multiple practice areas, with a special focus on investigation-related matters, as well as regulatory and oversight matters and litigation, particularly those in the oil, gas, and natural resources sectors. Prior to joining the firm, Mr. Farber served as the Senior Advisor to the... READ MORE
Doug Smith, Coordinator of Van Ness Feldman's electric practice, testified at the U.S.House of Representatives Committee on Energy and Commerce, Subcommittee on Energy and Power's recent hearing entitled,  “Federal Power Act: Historical Perspectives.” The hearing explored the evolution of the Federal Power Act, with special emphasis on electricity markets over the past twenty years. This is the first in a series of expected hearings on the Federal Power Act. Doug was featured among several witnesses was consisting of industry experts and thought leaders, including: Clifford M. (“Mike”) Naeve, former Commissioner, Federal Energy Regulatory Commission; Partner, Skadden, Arps, Slate, Meagher & Flom LLP Linda Stuntz, Deputy Secretary... READ MORE
FERC Rejects Jurisdiction over Small Conduit Projects at Reclamation Dam On September 22, 2016, the Federal Energy Regulatory Commission (FERC) denied a petition for declaratory order by Percheron Power, LLC (Percheron), requesting that FERC find that it retains jurisdiction to authorize small conduit hydropower projects within the U.S. Bureau of Reclamation’s (Reclamation) Columbia Basin Project, or at certain features of Reclamation’s project.  When Congress enacted the Small Conduit Hydropower Development and Rural Jobs Act (Small Conduit Act) on August 9, 2013, it provided Reclamation with authority to issue lease of power privileges for 5 megawatt or smaller non-federal hydropower projects on Reclamation conduits.  The Small Conduit Act... READ MORE
IN BRIEF  CEQ Releases Final Guidance on Greenhouse Gases and Climate Change in Environmental Reviews On August 1, 2016, the White House Council on Environmental Quality (CEQ) released Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act (NEPA) Reviews. Draft guidance documents were issued for public comment and feedback in 2010 and 2014. The guidance is intended to provide a level of predictability and certainty by outlining how federal agencies can describe these impacts by quantifying greenhouse gas (GHG) emissions when conducting NEPA reviews in order to provide a better understanding of the potential climate impacts of... READ MORE
PHMSA Rulemakings Update.  The tables below summarize the status of PHMSA’s rulemakings as reported in the Department of Transportation’s (DOT) September Significant Rulemaking Report and by OMB’s Office of Information and Regulatory Affairs (OIRA) in the Spring 2016 Unified Regulatory Agenda.  Revised dates appear in bold.   Pending Final Rules Proceeding DOT Estimated Submission to OMB* DOT Estimated Publication OIRA Estimated Publication  Expanding the Use of Excess Flow Valves in Gas Distribution... READ MORE