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Hoopa Valley Tribe v. Federal Energy Regulatory Commission

ELR Citation: 49 ELR 20015
Nos. 14-1271, (D.C. Cir., 01/25/2019)

The D.C. Circuit vacated a FERC decision concerning a licensee's decommissioning plan with reviewing states for hydroelectric dams along the Klamath River. A Native American tribe challenged FERC's determination that California and Oregon had not waived their water quality certification authority under CWA §401, arguing that the states waived §401 authority by agreeing with the licensee to defer the one-year statutory limit for §401 approval by annually withdrawing and resubmitting the water quality certification requests that served as a prerequisite to FERC's review. The court found that FERC acted arbitrarily and capriciously by treating each resubmission as an independent request subject to a new period of review. But the licensee's various resubmissions involved the same project and thus did not trigger a new statutory period of review. Because the states had not rendered certification decisions after more than a decade since the licensee submitted its application, well in excess of CWA §401's one-year statutory limit, the states clearly waived §401 authority. The court therefore ordered FERC to proceed with its review of the licensee's application.