California Trout and Trout Unlimited are asking the U.S. Supreme Court to review an appeals court ruling which found states waive their authority to issue water quality certifications on federal projects after one year, even if the application is withdrawn and later resubmitted.
In their Aug. 26 petition for a writ of certiorari, the groups say the Jan. 25 ruling by the U.S. Court of Appeals for the D.C. Circuit has already prompted FERC to find that water quality certifications were waived for a pipeline in New York state and a hydroelectric project in California.
The petition also says that since the ruling, FERC has received a surge of other requests to find that states already waived their authority in pending applications. It notes that 87 hydropower projects are currently undergoing FERC licensing proceedings and are now at risk of water quality waivers.
“The court condemned the decades-long practice described above of withdrawing and resubmitting certification requests—a practice that applicants and certifying states had long followed, and which FERC had repeatedly endorsed,” the filing states. “Because federal licenses for dams are typically granted for periods ranging from thirty to fifty years, and pipeline licenses are permanent, allowing significant projects to bypass water-quality certifications poses an environmental threat that would last for generations,” it says.
In the case, Hoopa Valley Tribe v. Federal Energy Regulatory Commission [14-1271], D.C. Circuit judges found that the states of California and Oregon had waived their authority in the Klamath Hydroelectric Project [P-2081] relicensing process (WPW No. 15 ).
The decision had no practical impact on Klamath River Renewal Corporation’s proposal to removal the four lower Klamath River projects, but an attorney for California Trout says the ruling appears to have changed how California responds to complex water quality certifications that take longer than one year—including a pending water quality certification needed to remove the dams. California recently denied that certification, but a KRRC spokesman said the denial is procedural and will not affect its plans to remove the dams and restore the lower Klamath River.
Under the Clean Water Act, a federal agency cannot issue a permit or license for any activity that may result in “any discharge into navigable waters” until the state has certified that the project will meet water quality requirements. When an applicant submits a request for a water quality certification, the state has one year to act on the request, which can include granting the request, granting it with conditions, or denying it. A state waives its authority to certify water quality if it fails to act on the request “within a reasonable period of time (which shall not exceed one year),” the act says.
On Sept. 3—one day shy of a year after KRRC applied for the water quality certification needed to transfer the license for the dams from PacifiCorp—the California State Water Resources Control Board denied the request “without prejudice,” signaling that the decision is not final.
KRRC spokesman Matt Cox told Clearing Up that the denial is simply a procedural measure, and the water board will continue its work to consider the certification. In its notice to KRRC, which was filed with FERC, the water board outlines the volume of information that must be considered, including about 2,500 comments, along with new and pending information from KRRC. It notes that when a proposed project’s compliance is not yet determined the board may deny the certification without prejudice.
Julie Gantenbein, an attorney representing California Trout, said that like other states, California’s water board had been relying on the withdrawal and resubmittal of water quality certification applications in complex projects, like pipeline or hydroelectric project licensing, or KRRC’s proposal to remove four hydroelectric facilities. “Now, you’ll see they’ve issued several denials without prejudice on other projects,” she said, adding that the procedure changed because of the Hoopa Valley Tribe decision.
In seeking the Supreme Court review, California Trout and Trout Unlimited argue that the D.C. Circuit’s decision changes a long-accepted practice for issuing complex water quality certifications, deepens a split with previous circuit court decisions, and creates “serious and immediate consequences: Dozens of dams with pending federal-license applications would be exempt from critical water-quality standards that the states would otherwise require.”
Gantenbein said two FERC decisions have already waived state authority due to the Hoopa Valley Tribe case. On April 18, FERC found that the California State Water Control Board waived its water quality certification authority in relicensing of the Middle Fork American Project [P-2079] because it had not acted on the application, filed in 2011. The 223 MW hydroelectric project is located on the Middle Fork of the American and Rubicon rivers. FERC found that Placer County, the project applicant, had simultaneously withdrawn and refiled its certification request every year for seven years, and that the water board actively participated in the process, sometimes requesting the withdrawal and refiling.
FERC also relied on the D.C. Circuit’s decision to conclude that New York waived its authority in the Northern Access 2016 Project, a nearly half-billion-dollar pipeline project to carry natural gas to New York. New York appealed, and now, the groups argue, in order to get a favorable ruling, the pipeline company has asked to move the appeal to the D.C. Circuit.
“This example shows, unless the Court resolves the conflict among circuits, litigants in these cases involving projects worth hundreds of millions of dollars will forum shop for the circuit that applies their desired approach.”
The conflict involves different rulings by three circuit courts. The D.C. Circuit ruled that a waiver of the state’s water quality certification authority occurs if the state fails to act on a request within one year of an applicant’s first submission, even if the application is withdrawn and resubmitted.
In the 4th Circuit, states waive their authority if they fail to act within one year of the date that the applicant’s request is deemed complete. In the 2nd Circuit, states waive their authority if they fail to act on a request within a year, but not if the applicant triggers a new review period by withdrawing the request and resubmitting it within the one year period.
The filing says the issue has significant implications for states, noting, “Federal law strikes a balance between the role of the federal government and the role of states in addressing water pollution for federally licensed projects.” It says Congress explicitly sought to protect states rights regarding water quality, and that the Supreme Court has repeatedly recognized the underlying balance between state and federal authority.
Under the D.C. Circuit’s ruling, it argues, “states will be unable to fulfill their duty to complete a meaningful review and analysis for large and complex projects.”
Meanwhile, the Environmental Protection Agency on Aug. 9 proposed a rule giving states and tribes up to one year to decide on Clean Water Act certifications for energy and other infrastructure projects, acting on a directive the White House issued in April (see previous story).