Licensees Seek Waiver of Section 401 Certification under D.C. Circuit Precedent
On January 25, 2019, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) issued a decision in Hoopa Valley Tribe v. FERC in the Federal Energy Regulatory Commission (FERC) relicensing of PacifiCorp’s Klamath Hydroelectric Project in Oregon and California, holding that the withdrawal and resubmission of water quality certification requests under Section 401 of the Clean Water Act (CWA) does not trigger a new statutory period of review. Since that time, at least two other California licensees engaged in relicensing have requested FERC to find that the state has waived its Section 401 authority by engaging in the withdraw and resubmit process.