On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.
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Supreme Court Re-Instates the Clean Water Act Section 401 Certification Rule
Today, in a 5-4 decision, the Supreme Court re-instated the U.S. Environmental Protection Agency’s (EPA’s) 2020 Clean Water Act (CWA) section 401 rule (Certification Rule). The Court stayed a decision by the U.S. District Court for the Northern District of California, which had vacated and remanded the Certification Rule back to EPA without first
Court Decision to Vacate, Remand State Water Quality 401 Certification Rule
On October 21, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (EPA) 2020 Clean Water Act Section 401 final rule (Certification Rule).
In response to the court’s ruling, EPA is implementing the previous water quality certification rule nationwide, which had been in effect since 1971, while it develops a new rule.
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FERC Finalizes Revisions to Dam Safety Regulations
On December 16, 2021, the Federal Energy Regulatory Commission (FERC) issued a final rule amending its regulations governing the dam safety of FERC-licensed hydropower projects under the Federal Power Act. Among other things, the final rule implements two tiers of project safety inspections and codifies FERC’s existing dam safety guidance. The rule will become effective
Infrastructure Bill Provides Opportunities for Hydroelectric Industry
On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act. The $1.2 trillion legislation includes over $900 million in incentives for new and existing hydropower, pumped storage, and marine energy. This funding includes grants to support grid resilience, dam safety upgrades, environmental enhancements, and wind and solar integration.
Army Corps Halts Coverage Under Nationwide Permits
Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).
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The Fourth Circuit Weighs In on the Interpretation of CWA Section 401
There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).
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District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment
On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
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EPA Announces Reconsideration and Potential Revision of the Clean Water Act Section 401 Final Rule
On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule).
Section 401 of the CWA provides a cooperative federalism framework where states and authorized Tribes can issue a water quality certification that places conditions on a proposed project or action requiring a federal permit. Under President Trump, EPA revised the regulations implementing Section 401, to among other reasons, create greater regulatory certainty in the process, reaffirm one year means one year or less as authorized by statute, address the scope of review by clarifying conditioning authority is focused on water quality effects of the discharge as opposed to the entire activity, and modernize the application process. While some states have intervened in support of EPA to defend the Final Rule (including Texas and West Virginia), other states (including New York and California) and environmental groups have challenged the Final Rule. Courts are currently holding these proceedings in abeyance in light of the change in administration. It is not clear how the reconsideration notice will affect these abeyances, but the courts may simply continue to hold the cases in abeyance pending a replacement rule being issued.
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FERC Terminates Licenses for Projects Involved in Michigan Dam Breach
In an order dated May 20, 2021, the Federal Energy Regulatory Commission (FERC, or the Commission) terminated the hydropower licenses for three projects located on the Tittabawasee River in Michigan—the Secord (P-10809), Smallwood (P-10810) and Sanford (P-2785) dams. The termination by implied surrender follows a May 2020 breach at the Sanford dam and the breach and failure of the upstream Edenville dam, which was also operated by the same licensee before the Commission revoked the Edenville license in 2018 due to the licensee’s repeated noncompliance with FERC dam safety orders. The resultant floods caused significant damage in the communities surrounding the dams and have been estimated by the State of Michigan to have caused economic harm exceeding $190 million.
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