D.C. Circuit Expands Precedent on CWA Section 401 Waiver

On June 17, 2022, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion determining that the California State Water Resources Control Board (“Board”) did not waive its authority under Clean Water Act (“CWA”) section 401 by twice denying certification applications without prejudice for two hydropower projects because those denials were “actions.” The case is Turlock Irrigation District, et al. v. Federal Energy Regulatory Commission, Consolidated Case No. 21-1120 (D.C. Cir. 2022).

Background

The Turlock and Modesto Irrigation Districts (“Districts”) own the Don Pedro and La Grange hydropower projects. In seeking to renew licenses for these projects with the Federal Energy Regulatory Commission (“FERC”), the Districts applied for CWA Section 401 water quality certifications with the Board. The Board denied these applications twice because it lacked necessary information (e.g., FERC’s National Environmental Policy Act analysis and the Districts’ California Environmental Quality Act analysis). After submitting a third application, the Districts petitioned FERC for orders declaring that the Board waived its certification authority for failing to act within one year of the Districts’ initial applications. The Districts then withdrew their applications pending with the Board. However, the Board still granted certifications for the Districts’ projects with dozens of conditions that the Districts objected to. Subsequently, FERC denied the Districts’ petitions, and the Districts filed petitions for review of FERC’s denials with the D.C. Circuit.

Decision

In their petitions to the D.C. Circuit, the Districts claim that the Board did not “act on [their] request for certification” because the Board’s denial did not address the technical merits of their requests. The D.C. Circuit rejected the Districts’ argument and agreed with FERC that the court’s previous decision in Hoopa Valley, which involved a “coordinated withdrawal and resubmittal scheme,” was inapplicable. Without such a scheme in place, the court determined that each of the Board’s denials without prejudice due to insufficient information constituted an “act” with “legal effect” that restarted the one-year deadline under CWA Section 401. As the court stated, the Districts’ applications “were not complete and they were not ready for review.”

For access to more information and insights about this case, Subscribe to Insights below.

If you have any questions about this case or CWA Section 401, please contact Jared Wigginton at jared@goodstewardlegal.com.

 ***

Good Steward Legal is a principles-driven business law office dedicated to protecting and advancing its clients’ interests by providing them with cost-effective, high-quality legal service. Good Steward Legal is proud to be a 1% for the Planet member and signatory of the Law Firm Climate Pledge.