President Nominates Bernard McNamee for Open FERC Seat

Update provided by Meguire Whitney

 On October 3, President Trump nominated Bernard McNamee to fill the open seat on the Federal Energy Regulatory Commission vacated by Robert Powelson, who resigned from the Commission in August.

McNamee is the executive director of the Department of Energy’s Office of Policy and had been rumored to be under consideration for the past few months. Before serving in his current role, he worked in several political positions, including in the general counsel’s office at the DOE and for Senator Ted Cruz (R–Texas).

McNamee was an author of the president’s proposal to prop up struggling coal and nuclear plants, which has prompted environmentalists to push back against his nomination. The issue is expected to remain front and center as the confirmation process gets underway. Given the timing of the mid-term elections and the uncertain lame duck session agenda, it is not clear when the Senate Energy and Natural Resources Committee will hold a confirmation hearing or when the full Senate will consider the nomination.

Senate Passes FAA Reauthorization, Bill Awaits President’s Signature

Update provided by Meguire Whitney

On October 3, the Senate passed a five-year extension of the Federal Aviation Administration. Having cleared the House last week, the bill now awaits President Trump’s signature. The agreement includes several provisions relating to drones, including a directive for FAA to test ways to integrate drone use beyond-line-of-sight, nighttime operations, and operations over people––considerations important for the effective application of drones by electric utilities. Additionally, it requires the FAA to begin a process to establish drone “no-fly” zones over critical electric infrastructure.

Utility-friendly drone policies, as outlined in NWPPA’s resolution, have been a core piece of NWPPA’s federal advocacy efforts. The issue was highlighted during NWPPA’s annual rally in Washington, D.C., where NWPPA members helped to educate their senators, representatives, and staff about the value drone technology can bring to utility safety and reliability.

The FAA bill also includes the Disaster Recovery and Reform Act, which includes a three-year limitation on de-obligation of federal funds for administrative and filing errors. The Federal Emergency Management Agency already is limited to a three-year timeframe for recouping disaster funds for other reasons. There have been recent cases in which FEMA has exercised its authority to recoup disaster funds awarded many years prior because of filing errors. This three-year limitation will prevent such situations from happening in the future.

Please note, Congress passed a one-week extension of the FAA last week to let the Senate have a few more days to process the final long-term agreement. We incorrectly reported last week that the DRRA was contained in the short-term extension. We apologize for the error.

Senate Committee Advances LWCF, Hydro Bills

Update provided by Meguire Whitney

In a busy October 2 markup that included more than 30 bills, the Senate Energy and Natural Resources Committee approved a reauthorization of the Land and Water Conservation Fund. S. 569, by Sen. Maria Cantwell (D–Wash.), would permanently reauthorize the LWCF as well as provide mandatory funding for the program. Created in 1964, the LWCF uses revenue from offshore oil and gas royalties to acquire, conserve, and restore sensitive or culturally important land and water resources across the country. Although upwards of $900 million in royalties are deposited into the account each year, the availability of those funds for use on LWCF projects is subject to amounts annually appropriated by Congress, averaging about $450 million per year. The bill would make the program’s funding mandatory at $900 million a year. However, both the change to mandatory spending and the $900 million funding level are the major hurdles to resolving differences between House and Senate efforts to reauthorize the popular program after the House Natural Resources Committee passed a similar bill in September but did not provide mandatory funding.

Other bills approved by the committee included S. 2560, by Sen. Jim Risch (R–Idaho), to make it easier to transfer title and ownership of certain Bureau of Reclamation projects or facilities to the non-federal entities that operate and maintain them. Of note to NWPPA, facilities that generate hydropower marketed by federal power marketing administrations would not be eligible for transfer under the bill. H.R. 1967, by Doug Lamborn (R–Colo.), was also approved to help promote the development of pumped-storage hydropower at BOR reservoirs, as well as another Sen. Cantwell bill (S. 2290) to update and modernize the technology used to fight forest fires.

Army Corps Updates Guidance on Mitigation Credits for Dam Removal

Update provided by Meguire Whitney

The Army Corps of Engineers issued new guidance on October 2 related to wetland and waterways mitigation that environmentalists hope will make dam removal an easier and more attractive option for stakeholders. Previously, the Army Corps did not have a standard method for calculating the mitigation “credits” developers can earn by removing obsolete dams, thereby incentivizing other mitigation practices with more clearly defined guidance. Environmentalists argue that removing dams to restore free flowing water and associated habitats is a more effective conservation method than other mitigating practices. Advocates for the policy change hope the increased regulatory certainty around dam removal will encourage the practice to be used more widely in applicable areas.

It is important to note the new guidance addresses the calculation method for mitigation credits only. It does not impact or change the statutory or regulatory process for identifying dams for removal, which can be of concern for utilities if infrastructure containing hydropower facilities are targeted for removal strictly for environmental appeasement. Also of note, the FY19 Energy and Water Appropriations minibus signed into law in September included language that prohibits the removal of any federal dam in the fiscal year.

Senate Commerce Committee Examines Rural Broadband Challenges

Update provided by Meguire Whitney

The Senate Commerce Committee held a hearing on October 4 to consider the challenges for expanding rural broadband service. The witness panel was composed of four executives of telecommunications companies. The hearing focused on the Federal Communications Commission’s decision to cut funding from the Universal Service Program for High-Cost Areas. Because many rural areas lack a sufficient customer base to support affordable broadband, this fund partially subsidizes rural broadband carriers to keep service viable. However, the program has been cut by more than 20 percent in recent years.

The witnesses, mostly from the West, described how these cuts have delayed the expansion of service. Senators from both parties levied criticism at the FCC for making these cuts. The FCC plans to establish a more predictable funding pattern for the program later this year and commissioners have promised to study the effects that the cuts are having on deployment. Chairman John Thune (R–S.D.) sharply criticized the Commission for not yet conducting such an analysis, calling the lack of action “unacceptable.”

The hearing did not touch on the FCC’s recent declaratory ruling regarding small-cell deployment and pole attachment regulation.

Senate Examines EPA’s Science Proposal

Update provided by Meguire Whitney 

On October 3, the Senate Environment and Public Works Subcommittee on Superfund, Waste Management and Regulatory Oversight met to discuss the Environmental Protection Agency’s proposed rule to revamp science policies. The EPA proposed the rule on April 30 and comments closed on August 16. Under the proposed rule, the EPA would only be able to use studies that have data sets and other accompanying information that can be used to verify a study’s findings.

Chairman Mike Rounds (R–S.D.) voiced concerns with the existing process, saying that EPA’s current lack of transparency leads to the use of science that supports “a predetermined policy outcome.” Rounds later questioned witnesses, including the American Association for the Advancement of Science CEO Rush Holt, on the proposal’s impact on EPA’s use of peer-reviewed research. Holt responded that it would enable the agency to “cherry pick” studies to help loosen regulations. He argued in favor of the current peer-review process, saying that it helps remove biases and enable verification as opposed to replication. Ranking Member Cory Booker (D–N.J.) agreed with Holt’s assessment, noting that the rule hinders stronger environmental regulation due to the exclusion of relevant science and the need for the EPA to consult with its Science Advisory Board. The agency is still reviewing the comments it received and has not yet issued a final rule.

FCC Order Limiting Pole Attachment Fees of State and Localities Garners Lawsuit Threats

Update provided by Meguire Whitney 

On September 26, the Federal Communications Commission issued an order limiting the fees that local authorities can charge wireless providers to attach 5G facilities to public assets, including electric poles owned by municipal entities. The order, which was approved by a 4-0 vote, represents a reinterpretation of public rights of way and wireless service sections under the Communications Act.

The FCC asserts these sections allow it to prevent fees and delays that undermine the deployment of wireless services. The order requires state entities and municipalities to process pole attachment applications within 60 days for existing poles and 90 days for new structures. It also limits fees charged for each attachment. A separate provision of the Communications Act provides not-for-profit electric utilities an exemption from federal pole attachment regulations, and therefore the order is in direct conflict with this exemption. The cities of Seattle and Portland have joined other cities nationwide to issue statements in opposition to this order and to raise the threat of a lawsuit.

While NWPPA members support deployment of broadband technology, NWPPA’s resolution on pole attachments outlines how maintaining local control of publicly owned utility infrastructure is essential to ensuring both safety and reliability. NWPPA supports the current law exempting not-for-profit utilities from FCC regulation on pole attachments and has opposed the FCC advisory committee’s recommendations identifying the need to regulate not-for-profit utilities. NWPPA has also opposed legislation introduced in the Senate by Senate Commerce Committee Chairman John Thune (R–S.D.) and Senator Brian Schatz (D–Hawaii)—S. 3157, the STREAMLINE Small Cell Deployment Act—that would use the same sections of the Communications Act as this FCC order to regulate cities and state entities on pole attachment fees and responses to attachment requests. NWPPA will work closely with APPA and other national and regional trade associations to oppose this FCC order and S. 3157.

Northwest Public Power Association