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 11
Friday, October 30, 2020

The California State Water Resources Control Board (Water Board) and a group of environmental organizations, including California Sportfishing Protection Alliance, Friends of the River, and Sierra Club and its Tehipite Chapter, each have filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) of 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 Merced Irrigation District’s (Merced) Merced River and Merced Falls Projects.  Merced filed its request for determination of waiver in response to the D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC and FERC’s subsequent declaratory order in Placer County Water Agency.  FERC issued its waiver determination on June 18, 2020 and a Notice of Denial of Rehearings by Operation of Law on August 20, 2020.

As described in our July newsletter, Merced initially filed its 401 application with the Water Board in May 2014 and subsequently withdrew and resubmitted the application each year for four years in coordination with the Water Board.  In April 2019, the Water Board denied Merced’s application without prejudice on the basis that the California Environmental Quality Act (CEQA) was not yet complete.  Merced 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 Merced’s request, finding that the coordinated withdrawal and refile process constituted a waiver of 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 Merced voluntarily withdrew its application each year to avoid a denial without prejudice, FERC found that the Water Board expected and, in some years, directed Merced 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 process.

The appeals in the Merced case join challenges already pending in the Ninth Circuit to FERC’s 401 waiver determinations in the ongoing relicensings of Yuba County Water Agency’s Yuba River Development Project and Nevada Irrigation District’s Yuba-Bear Hydroelectric Project.


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