ABA-SEER Hydro Power Committee News Updates
September 1, 2010

ORPC Reports Successful Test of Commercial-Sized Underwater Turbine

On August 18, 2010, Ocean Renewable Power Company (“ORPC”) reported that its Beta Power System has successfully generated grid-compatible power from tidal currents. The 60 kW Turbine Generator Unit met or exceeded ORPC’s expectations for testing at a range of current velocities. The company will use the data gathered to complete the design of its 150 kW TidGenTM Power System, which is scheduled for installation in Eastport, Maine in late 2011, and will interconnect to the New England grid through the Bangor Hydro Electric Company system. The TidGenTM Power System will generate enough electricity to power 50-75 homes.

For more information, see ORPC’s press release.

Midwest States May See a Surge of Hydropower Development

According to an article in the Kansas City Star on August 19, 2010, Midwest states may see a surge of hydropower development as upgrades to existing facilities, new small projects, and more unconventional plans like installing turbines in pipelines and discharge systems gain favor. One company, the Bowerstock Mills & Power Co. in Lawrence, Kansas, which controls an existing 2.3 MW plant across part of the Kansas River, has already filed for the regulatory approvals it needs for its expansion. The company hopes that the $20 million expansion will be completed by late 2012, effectively tripling the project’s capacity.

For more on this story, see the full text of Steve Everly’s article, “In Midwest, hydroelectric power may catch a wave of favor.”

SEER Fall Meeting and Public Service Project
Our Section's Fall Meeting (Sept. 29 - Oct. 2) in New Orleans is only a month away! You can review the Fall Meeting's many cutting-edge panels and networking opportunities and register at http://www.abanet.org/environ/fallmeet/2010/home.shtml. If you’ve already registered for the Fall Meeting, please also register for our Section's Sept. 29 public service tree planting project (it’s free!) by emailing Fawziah Bajwa at bajwaf@staff.abanet.org.

Federal Agency Hydro Power Memorandum of Understanding
The Departments of Energy, Interior, and Army entered a Memorandum of Understanding on March 24, 2010, related to enhancing hydropower production. The MOU is below. At the signing event/workshop last Wednesday, the Secretaries of these agencies expressed support for modernization of existing hydro facilities and development of low impact hydropower and new hydro technologies that are environmentally sound. The sound bite getting a lot of attention is the Secretary of Energy's statement: "I am for hydropower, because I am an environmentalist."

More on this MOU can be found at the following link: http://www.stoel.com/files/FederalHydroMOU.PDF.

Hydro Power Committee Co-Sponsors Two Panels at Our Section's Fall Meeting

Our 17th Section Fall Meeting (Sept. 23-26, 2009) in Baltimore includes two panels co-sponsored by the Hydro Power Committee:

• “Let the Wind Blow: Resolving the Regulatory, Cost Allocation, and Siting Challenges Associated with Wind Resources”, on Thursday, September 24, at 1:30 – 3:00 P.M.
• “DSM, Energy Efficiency, and Smart Grid – Smart Components of a Carbon Constrained Energy Environment”, on Thursday, September 24, at 3:30 – 5:00 PM Eastern.

Come to our Section’s Fall Meeting and attend these cutting-edge panels. Complete information about our Fall Meeting is at http://www.abanet.org/environ/fallmeet/2009/home.shtml.

Casitas Municipal Water Dist. v. U.S.

Casitas Municipal Water Dist. v. U.S., 2008 U.S. App. LEXIS 20297 (Fed Cir., Sept. 25, 2008), available at http://www.cafc.uscourts.gov/opinions/07-5153.pdf, involved a Federal Bureau of Reclamation project called the Ventura River Project. A NMFS Biological Opinion required that the irrigators install a fish ladder and divert some project water to permit steelhead to use the ladder. The irrigators alleged that these requirements breached their contract with Reclamation and effected a physical taking of part of their water right. In a 2-1 opinion, the Federal Circuit rejected the contract claim, concluding that construction of the fish ladder constituted an operation and maintenance cost for which the irrigators were responsible under the contract, and that the sovereign acts doctrine shielded the government from contract liability for the water diversion mandate. However, the court held that the BiOp's water diversion mandate was not subject to a "regulatory takings" analysis, under which most government restrictions on use of private property are upheld, but instead constituted a per se physical taking for which the 5th Amendment requires compensation. Therefore, the court ruled that the government need not compensate irrigators when it requires them to build a fish ladder, but the government must pay for the water needed to operate that ladder. The dissent argued that the irrigators' state water right was subject to the public trust doctrine, and that the restriction on its use should be analyzed under regulatory takings jurisprudence.

National Wildlife Federation v. National Marine Fisheries Service

In National Wildlife Federation v. National Marine Fisheries Service, Nos. 06-35011 and 06-35019 (April 9, 2007), the Court of Appeals for the Ninth Circuit upheld the decision of the District Court of the State of Oregon to invalidate a November 2004 Biological Opinion addressing the effects of proposed operations of major Federal hydroelectric projects in the Columbia River basin on salmon and steelhead listed as threatened or endangered species under the Endangered Species Act. Click here for the opinion on the Court of Appeals' website. In May 2008, the National Marine Fisheries Service issued a new Biological Opinion. The District Court will review this opinion in early 2009.