DC Circuit Strictly Construes One-Year Deadline for State Waivers of Water Quality Certifications

On January 25, 2019, in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, 2019 WL 321025 (D.C. Cir. Jan. 25, 2019), the U.S. Court of Appeals for the D.C. Circuit ruled that the withdrawal-and-resubmission of requests for water quality certification under section 401 of the Clean Water Act (CWA) pursuant to an agreement with a state does not trigger new statutory review periods. Accordingly, the court found that the states of Oregon and California waived their 401 certification authority in the Federal Energy Regulatory Commission (FERC) relicensing of a hydroelectric project along the Klamath River. This decision could have major implications for projects that have relied on a withdrawal-and-resubmission strategy in the 401 certification process.

Background on Section 401 of the CWA

Section 401 of the CWA, 33 U.S.C. § 1341, requires that an applicant for a federal license or permit for an activity that “may result in any discharge into the navigable waters” must obtain a certification from the state. In other words, 401 certification from the state is a precondition to issuance of such a federal license or permit. The statute further provides that if a state fails to act on a request for certification “within a reasonable period of time (that shall not exceed one year),” then the state will be deemed to have waived certification.

Background on the Project at Issue

At issue in Hoopa Valley is the Klamath Hydroelectric Project licensed to PacifiCorp and located primarily along the Klamath River in Oregon and California. In 2004, PacifiCorp filed an application with FERC to relicense the Project.

After prolonged negotiations related to the application, a number of parties, including PacifiCorp and the states, entered into the Klamath Hydroelectric Settlement Agreement. As part of the Agreement, PacifiCorp—as described by the court—“agreed to defer the one-year statutory limit for 401 certification by annually withdrawing-and-resubmitting the water quality certification requests that serve as a pre-requisite to FERC’s overarching review.” In response, FERC deferred action on the relicensing application while the parties pursued the agreement to decommission the Project.

Pursuant to the Agreement, the parties operated under this arrangement for nearly a decade. Each year, PacifiCorp would submit a letter to the states indicating withdrawal of its water quality certification request and resubmission of the same. The Hoopa Valley Tribe subsequently filed a lawsuit in which it asserted that the states’ failure to act within one year and the agreement with PacifiCorp constituted a waiver of their 401 certification authority.

The D.C. Circuit’s Decision

The D.C. Circuit held that withdrawal-and-resubmission of a 401 certification request was not a “new request” and, therefore, did not restart the one-year clock for the state to act on the request. The court emphasized that allowing for the withdrawal-and-resubmission of the exact same 401 certification request for over a decade effectively “usurp[ed] FERC’s control over whether and when a federal license will issue.” The court declined, however, to rule whether the withdrawal-and-resubmission of an altered or wholly new certification request is permissible.

Implications

The immediate effect of the court’s decision is that Oregon and California waived their 401 certification authority for the relicensing of the Klamath Hydroelectric Project. The court’s decision may have a significant impact on FERC hydropower licensing proceedings as well as on a broad range of projects that require federal licenses and permits, such as FERC gas pipeline certifications and U.S. Army Corps of Engineers CWA section 404 dredge and fill permits.

Although the court’s ruling in Hoopa Valley was a reaction to exceptional factual circumstances, the decision calls into question the 401 certification request withdrawal-and-resubmission strategy, which is a longstanding practice. Given that the court did not address the circumstance in which a different certification request, perhaps with new information, was submitted, we will undoubtedly see additional case law testing the limits of Hoopa Valley. In the interim, the decision will likely encourage states to deny certification requests that they are not prepared to approve, rather than allow the applicant to withdraw and resubmit the request.