Barclay Damon
Barclay Damon

Hydroelectric Generator Beats Back Competitor’s Regulatory Challenges

A hydro-electric generator needed a Clean Water Act Section 401 Water Quality Certification (WQC)  as part of its Federal Energy Regulatory Commission (FERC) re-licensing proceeding. The matter was strongly opposed by a competing generator that was trying to gain control of one of the generator's assets and was using the WQC proceeding as leverage.

The client engaged our firm on the eve of the hearing, and our attorneys had to quickly review voluminous documents, conduct interviews with company representatives and prepare for a hearing quickly, since the New York State Department of Environmental Conservation (DEC) was eager to start the public review and comment process.

The competitor formally intervened in the proceeding and alleged a number of issues in attacking the WQC and requested a further administrative hearing to challenge the factual findings the DEC had made in favor of certification.

Our attorneys filed appeals, including one to the DEC Commissioner, and we were ultimately successful in having the Administrative Law Judge affirm the DEC staff's determination on the terms and conditions in the WQC. The competitor then initiated an Article 78 court challenge to the DEC's final determination on the WQC, and at the outset, secured a temporary restraining order (TRO) blocking the issuance of the FERC License.

We successfully appealed the TRO. With the restraining order lifted, the WQC remained effective and the renewed FERC license was issued. Ultimately, our attorneys defeated the competitor's request for a preliminary injunction and its overall challenge to the WQC.


For More Information on Barclay Damon's Environmental Practice Area:

Frank Bifera

p: 518.429.4224

f: 518.427.3487

View Profile

Yvonne Hennessey

p: 518.429.4293

f: 518.427.3472

View Profile