Ninth Circuit finds no waiver of authority of National Water Board | Troutman pepper

On August 5, the United States Court of Appeals for the Ninth Circuit overturned several Federal Energy Regulatory Commission (FERC) orders and ruled that the California State Water Resources Control Board (SWRCB) had not waived its power to issue water quality certifications for several hydroelectric projects. Before the court of SWRCB v. FERCNo. 20-72432, were several FERC appeal orders in which the Commission found that the SWRCB participated in a coordinated “take-and-resubmit” program to evade the statutory one-year Section 401 time limit of the Clean Water Act (CWA) on state review of an application for certification.

The court described that a practice had developed to avoid running out of time on a CWA Section 401 application where a project proponent would withdraw and resubmit its application for certification just before the deadline of a year. In consolidated cases, because the SWRCB was unable to complete its analysis of the California Environmental Quality Act (CEQA) within the allotted time, it coordinated with claimants to ensure that applications were withdrawn and resubmitted. Since the decision of the DC circuit in 2019 in Hoopa Valley Tribe v. FERC, 913 F.3d 1099, found that a “Coordinated Takedown and Resubmission Program” constituted a “failure” or “refusal” to act within the meaning of Section 401, FERC reviewed the records of the agreements withdrawal and resubmission in a number of ongoing hydroelectric license renewal procedures. In the consolidated cases, FERC found that in several proceedings SWRCB had sought to circumvent the delay and that its coordinated efforts were demonstrated in correspondence with the plaintiffs.

However, the Ninth Circuit overruled the FERC rulings, finding that the Commission’s reliance on those communications did not support that the SWRCB was unlawfully requesting an extension. Instead, the court distinguished coordination scenarios in which the state certification authority requested an extension because it was beneficial to the agency, as opposed to cases where the arrangement is not beneficial. only for an applicant. The court found that the record demonstrated that the project claimants chose to withdraw their certification applications because the claimants had not yet prepared their CEQA analyses, which only benefited the claimants. The tribunal took the SWRCB’s position that it was legally obligated to deny the claims without prejudice without a full CEQA analysis.

FERC will now have to review its orders for hydroelectric projects to ensure that its decisions are consistent not only with the latest Ninth Circuit notice, but also with case law that has developed in several circuits after Hoopa Valley Tribe. For example, in 2021, the second circuit found that the New York State Department of Environmental Conservation waived its certification authority when it coordinated with the applicant to “postdate” the date of filing its application for certification of water quality for several weeks, allowing for a several-day extension of the one-year period.

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