FERC Declaratory Order Finding Waiver of California Section 401 Authority Challenged in Ninth Circuit

Article from The National Law Review.


Hydro Newsletter – Volume 7, Issue 10

Wednesday, September 30, 2020
Sharon White
Rachael L. Lipinski
Van Ness Feldman LLP

The California State Water Resources Control Board (Water Board) and a group of environmental organizations, including the South Yuba River Citizens League, California Sportfishing Protection Alliance, Friends of the River, and the Mother Lode Chapter of the Sierra Club, each have filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) of  Federal Energy Regulatory Commission (FERC) orders finding that the Water Board waived its authority under section 401 of the Clean Water Act (CWA) to issue a water quality certification (WQC) in the ongoing relicensing of Yuba County Water Agency’s (YCWA) Yuba River Development Project.  YCWA filed its request for determination of waiver in response to the U.S. Court of Appeals for the D.C. Circuit’s (D.C. Circuit) decision in Hoopa Valley Tribe v. FERC and FERC’s subsequent declaratory order in Placer County Water Agency.  FERC issued its waiver determination on May 21, 2020 and an order denying rehearing on July 21, 2020.

As described in our June newsletter, YCWA initially filed its 401 application with the Water Board in August 2017 and subsequently withdrew and resubmitted its application in August 2018 at the direction of the Water Board.  In July 2019, the Water Board denied YCWA’s application without prejudice on the basis that the California Environmental Quality Act (CEQA) process and consultation under the federal Endangered Species Act (ESA) were not yet complete, and encouraged YCWA to file a new request.  YCWA did not file a new 401 application, but instead sought a determination from FERC that the Water Board had waived its authority under section 401.

FERC granted YCWA’s request, finding that the Water Board waived its section 401 authority.  Consistent with its other waiver decisions, FERC held that a formal agreement between a licensee and a state is not necessary to support a finding of waiver.  In response to the Water Board’s argument that YCWA voluntarily withdrew its application each year to avoid a denial without prejudice, FERC found that the Water Board directly asked YCWA to withdraw and resubmit its application to avoid the CWA’s one-year waiver deadline.  FERC also rejected arguments that the 401 certification process was held up by the CEQA and ESA processes.

As reported in our September newsletter, there are also challenges pending in the Ninth Circuit to FERC’s 401 waiver determination in Nevada Irrigation District’s ongoing relicensing of the Yuba-Bear Hydroelectric Project.

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