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Hoopa Valley Tribe v. FERC

United States Court of Appeals for the District of Columbia Circuit

October 1, 2018, Argued; January 25, 2019, Decided

No. 14-1271


 [*1100]  Sentelle, Senior Circuit Judge: Hoopa Valley Tribe ("Hoopa") petitions for review of Federal Energy Regulatory Commission ("FERC") orders, which found (1) that California and Oregon had not waived their water quality certification authority under Section 401 of the Clean Water Act ("CWA") and (2) that PacifiCorp had diligently prosecuted its relicensing application for the Klamath Hydroelectric Project ("Project"). Whereas statutory waiver is mandated after a request has been pending for more than one year, the issue in this case is whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly  [*1101]  withdrawn and resubmitted water quality certification requests as new requests. We conclude that the withdrawal-and-resubmission of water quality certification requests does not trigger new statutory periods of review. Therefore, we grant the petition and vacate the orders under review.


A. Statutory Background

] Under Subchapter I of the Federal Power Act ("FPA"), 16 U.S.C. §§ 791a-823g, [**4]  Congress granted FERC authority to regulate the licensing, conditioning, and development of hydropower projects on navigable waters. Under Section 401 of the CWA, any applicant seeking a federal license for an activity that "may result in any discharge into the navigable waters" must first seek water quality certifications from the controlling states. See 33 U.S.C. § 1341(a)(1). Thus, a state's water quality review serves as a precondition to any federal hydropower license issued by FERC. The statute further provides that state certification requirements "shall be waived with respect to such Federal application" if the state "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." See id. "[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification under Section 401." Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972, 395 U.S. App. D.C. 425 (D.C. Cir. 2011).

B. History of the Klamath Hydroelectric Project

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913 F.3d 1099 *; 2019 U.S. App. LEXIS 2454 **; 49 ELR 20015; 86 ERC (BNA) 3405; 102 Fed. R. Serv. 3d (Callaghan) 944


Subsequent History: Rehearing denied by, Motion granted by, Motion denied by Hoopa Valley Tribe v. FERC, 2019 U.S. App. LEXIS 12764 (D.C. Cir., Apr. 26, 2019)

Rehearing denied by, En banc, Motion denied by, Motion granted by Hoopa Valley Tribe v. FERC, 2019 U.S. App. LEXIS 12763 (D.C. Cir., Apr. 26, 2019)

US Supreme Court certiorari denied by Cal. Trout v. Hoopa Valley Tribe, 2019 U.S. LEXIS 7277 (U.S., Dec. 9, 2019)

Prior History:  [**1] On Petition for Review of Orders of the Federal Energy Regulatory Commission.

PacifiCorp, 147 F.E.R.C. P61216, 2014 FERC LEXIS 980 (F.E.R.C., June 19, 2014)


licensing, certification, water quality, decommissioning, waived, dams, requests, Environmental, settlement, one year, withdrawal-and-resubmission, hydropower, parties, period of time, one-year, orders

Environmental Law, Enforcement, Discharge Permits, State Water Quality Certifications, Administrative Law, Judicial Review, Standards of Review, Abuse of Discretion, Energy & Utilities Law, Electric Power Industry, Federal Power Act, Judicial Review, Arbitrary & Capricious Standard of Review, Administrative Proceedings, Standards of Review, Deference to Agency Statutory Interpretation, Civil Procedure, Appeals, Appellate Jurisdiction, Jurisdiction, Hydroelectric Power Industry