On December 16, 2021, the Federal Energy Regulatory Commission (“FERC”) issued a Final Rule (“Order No. 880” or “Order”), revising its regulations related to hydroelectric project safety (codified at 18 C.F.R. Part 12), pursuant to FERC’s authority under the Federal Power Act to prescribe rules “for the protection of life, health, and property” at licensed projects (16 U.S.C. § 803(c)). The Order is the culmination of FERC’s identification of gaps in its dam safety program in response to the February 2017 Oroville Dam spillway breach. The rule will become effective 90 days following publication in the Federal Register.
First, Order No. 880 revises FERC’s regulations related to independent consultants’ review, inspection, and assessment of hydroelectric projects, which FERC states have not been substantially revised or amended since 1981. Order No. 880 implements two tiers of a Part 12 independent consultant team’s safety inspections (“Part 12 inspections”)—consisting of a comprehensive assessment and a periodic inspection—applicable to dams and portions of project works deemed to have high hazard potential. The comprehensive assessments and periodic inspections must be performed at 10-year intervals, with the periodic inspections occurring five years before each comprehensive assessment. Additionally, FERC’s Regional Engineer may order an inspection at any time if it is determined that the dam or other project work poses significant safety concerns.
Among other elements of the Part 12 inspection, FERC codifies its existing method to assess and prioritize dams’ and dam components’ potential failures (“the potential failure mode analysis”), and expands upon FERC’s requirement to evaluate spillway adequacy. The Order also revises and clarifies the process followed by FERC’s Division of Dam Safety and Inspections (“D2SI”) to evaluate independent consultants, and D2SI’s authority to exempt licensees from Part 12 inspections for good cause shown, or, conversely, to rescind previously-granted exemptions.
Second, Order No. 880 requires any licensee with a dam or other project works classified as having high hazard potential (the term as defined in the regulations) to perform, review, and submit to the Regional Engineer an independent external audit or peer review of the Owner’s Dam Safety Program at five-year intervals.
Additionally, FERC revised its regulations at 18 C.F.R. Part 12 in several miscellaneous respects, including clarification of the regulations governing licensees’ reporting of public safety incidents. Under the revised regulations, initial reports of conditions affecting the safety of a project or project works should be made to the Regional Engineer by email or telephone preferably within 72 hours of the condition’s discovery, and written reports must be promptly submitted following discovery of deaths, serious injuries, or rescues considered or alleged to be project-related.
To provide additional guidance related to Order No. 880, FERC promulgated four new chapters in its Engineering Guidelines for the Evaluation of Hydropower Projects. The new Chapters 15-18 discuss the Supporting Technical Information Document and Digital Project Archive, the Part 12D Program, Potential Failure Mode Analysis, and Level 2 Risk Analysis.
Order No. 880, issued in FERC Docket No. RM20-9-000, is available here.
FERC’s Engineering Guidelines for the Evaluation of Hydropower Project are accessible here.
For further information, please contact Sean M. Neal, Lisa S. Gast, Peter C. Kissel, Lauren M. Perkins, Sylwia Dakowicz, or Ellen L. Hill.
