Verrill Dana’s energy practice group is involved in all aspects of the acquisition, licensing and operation of hydro electric facilities. Specifically, the firm appears regularly before FERC in connection with the licensing and re-licensing of hydro facilities, including securing required state 401 water quality certificates and negotiating safety, aesthetic and recreational licensing conditions with government agencies, interest groups and abutters. The firm has litigated headwater benefit claims before FERC involving disputes over annual Section 10(f) payments from downstream owners to upstream owners. Our attorneys have been involved in several disputes over the decommissioning and removal of dams. The firm regularly advises buyers and sellers of hydro facilities in structuring such transactions. The firm has advised clients on compliance with FERC safety audits and has arbitrated disputes arising under power purchase agreements between hydro facilities and power purchasers.
The following are significant examples of hydro power matters handled by our Energy Group:
- Arbitration of Hydro PPA Dispute - The firm represented a Maine utility in arbitrating a contractual dispute between the utility and a hydro facility owner arising under a long term power purchase agreement. After a lengthy hearing, the arbitrator ruled in favor of the utility that under the full output PPA with a single MWH price referring only to energy sales, the utility purchased all the energy and capacity available from the facility.
- Favorable Settlement In FERC Headwater Benefits Case - In 2015, Katie Gray and Bill Harwood secured a settlement in a FERC headwater benefits case on behalf of several downstream hydro owners that spanned 12 years and involved millions of dollars of claims between several major U.S. hydro developers with interests in Penobscot River hydro facilities. The case was complicated by many factors, including: (1) a jurisdictional fight between the U.S. Bankruptcy Court and FERC after one of the parties filed for bankruptcy; (2) a contested Release of a portion of the claim; and (3) multiple sales of both the upstream and downstream hydro facilities over the 12 years, resulting in multiple indemnification claims and defenses between the parties related to the headwater benefits claim.
- Penobscot River Restoration Trust - Since 2003, Verrill Dana has represented the Penobscot River Restoration Trust in one of the largest river restoration projects in the United States. As part of a multi-party collaboration with environmental groups and hydro operators, Verrill Dana assembled a multi-disciplinary team of energy, environmental, real estate, corporate and tax professionals in negotiating the key terms of a settlement agreement that balanced fish passage goals with continued hydropower generation. We represented the Trust in all aspects of the project, including corporate matters, permitting, and construction and implementation.
