Article from The National Law Review.
Hydro Newsletter – Volume 7, Issue 9
Rachael L. Lipinski
Van Ness Feldman LLP
Monday, August 31, 2020
FERC Declaratory Order Finding Waiver of California Section 401 Authority Challenged in Ninth Circuit
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 Sierra Club and its Mother Lode Chapter, 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 Nevada Irrigation District’s (NID) Yuba-Bear Hydroelectric Project. NID 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 April 16, 2020 and a rehearing order on July 21, 2020.
As described in our May newsletter, NID initially filed its 401 application with the Water Board in March 2012 and subsequently withdrew and resubmitted its application each year between 2013 and 2018 in coordination with the Water Board. In January 2019, the Water Board denied NID’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 NID to file a new request. NID 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 NID’s request for a waiver determination, finding that the Water Board waived its section 401 authority through the repeated withdrawal and refiling of NID’s application for WQC. 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 NID voluntarily withdrew its application each year to avoid a denial without prejudice, FERC found that the Water Board expected and encouraged NID 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.
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