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The Federal Energy Regulatory Commission's (FERC) interpretation of the Clean Water Act (CWA), 33 U.S.C.S. § 1341, receives no judicial deference because the FERC is not congressionally authorized to administer the CWA. Thus, the court reviews de novo the FERC's construction of the CWA.
Petitioners, the State of Vermont and American Rivers, Inc., sought review of several orders issued by the Federal Energy Regulatory Commission ("Commission") licensing six hydropower projects located on rivers within the State of Vermont. The dispute surrounded (1) the authority of the State under § 401 of the Clean Water Act ("CWA"), 33 U.S.C. § 1341, to certify -- prior to the issuance of a federal license -- that such projects will comply with federal and state water quality standards and (2) the appropriate route for review of a state's certification decisions. The Commission argued that, when it determines that a state has exceeded the scope of its authority under § 401 in imposing certain pre-license conditions, it may refuse to include the ultra vires conditions in its license as it did in each of the proceedings at issue. The State of Vermont and American Rivers contended that the Commission is bound by the language of § 401 to incorporate all state-imposed certification conditions into hydropower licenses and that the legality of such conditions can only be challenged by the licensee in a court of appropriate jurisdiction.
Is the Commission bound by the language of § 401 to incorporate all state-imposed certification conditions into hydropower licenses and that the legality of such conditions can only be challenged by the licensee in a court of appropriate jurisdiction?
The court vacated the Commission’s order and found that it did not have the authority to determine the legality of conditions imposed by a state under the CWA, because that was the purview of the appropriate court. The court reviewed the Commission’s construction of the CWA de novo because administration of the CWA was delegated to the Environmental Protection Agency alone. The court found that the express language of the CWA required that any conditions imposed upon a certification by the state became conditions on the subsequent federal license issued by the Commission and that no authority to reject such conditions was granted to the Commission.