The U.S. Supreme Court has declined to review a lower court ruling on how long states have to weigh in on water quality certifications for federal projects.
On Dec. 9, the court denied a petition by California Trout and Trout Unlimited asking it to reverse a January ruling from the U.S. Court of Appeals for the D.C. Circuit that found states waive their authority to issue water quality certifications one year after an application is submitted, even when the application is withdrawn and later resubmitted.
In their Aug. 26 petition to the court, the conservation groups said the D.C. Circuit ruling could immediately affect 87 hydropower projects currently undergoing Federal Energy Regulatory Commission (FERC) licensing. They said the court had overturned a decades-long FERC-endorsed practice of withdrawing and resubmitting water quality certifications that gave states more time to evaluate complex projects.
FERC initially denied the Hoopa Valley Tribe's petition asking it to find states had waived certification authority in the Klamath Hydroelectric Project relicensing process, and defended that decision in the U.S. District Court's Hoopa Valley Tribe v. Federal Energy Regulatory Commission..
But the federal agency changed positions, and joined PacifiCorp and the Hoopa Valley Tribe in asking the Supreme Court to let the decision stand.
Meanwhile, 21 states joined the conservation groups in the request to reverse the ruling.
Section 401 of the Clean Water Act says a state waives its authority after failing to act on a water quality application "within a reasonable period of time (which shall not exceed one year)."
The ruling is not expected to impact Klamath River Renewal Corporation's application to FERC seeking to transfer four of PacifiCorp's hydroelectric projects to KRRC for removal. But the D.C. Circuit ruling could already be changing the way states handle water quality applications. Earlier this year, the California State Water Resources Control Board denied a water quality certification for the project "with prejudice," indicating it will continue its work to consider the certification.
An attorney for California Trout did not return a call and email from NW Fishletter seeking comment on the impact of the Supreme Court's failure to take up the case. The initial petition from the groups says letting the ruling stand would hamper the ability of states to complete meaningful reviews for large and complex projects.