Petition for Writ of Certiorari — California Trout, et al., Petitioners v. Hoopa Valley Tribe, et al.
Supreme Court briefAug 26, 2019
Ask Donna
What actually matters in this document.
Text
1a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
-----------------------------------------------------------------------
Argued October 1, 2018
Decided January 25, 2019
No. 14-1271
HOOPA VALLEY TRIBE,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
AMERICAN RIVERS, ET AL.,
INTERVENORS
-----------------------------------------------------------------------
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
-----------------------------------------------------------------------
Thane D. Somerville argued the cause for petitioner. With him on the briefs was Thomas P. Schlosser.
Carol J. Banta, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On
the brief were James P. Danly, General Counsel, Robert H. Solomon, Solicitor, Robert M. Kennedy, Senior
Attorney, and Ross R. Fulton, Attorney.
Richard Roos-Collins, Julie Gantenbein, Stuart
Sornach, Michael A. Swiger, and Sharon L. White were
on the briefs for intervenors American Rivers, et al. in
support of respondent.
2a
Michael A. Swiger and Sharon L. White were on
the brief for intervenor Pacificorp in support of respondent. Charles R. Sensiba entered an appearance.
George J. Mannina Jr. was on the brief for intervenor-respondent Siskiyou County, California. Ashley
Remillard and Paul S. Weiland entered appearances.
Robert W. Ferguson, Attorney General, Sonia A.
Wolfman, Assistant Attorney General, Office of the Attorney General for the State of Washington, Lawrence
G. Wasden, Attorney General, Office of the Attorney
General for the State of Idaho, Joseph A. Foster, Attorney General, Office of the Attorney General for the
State of New Hampshire, Douglas S. Chin, Attorney
General, Office of the Attorney General for the State of
Hawaii, Janet T. Mills, Attorney General, Office of the
Attorney General for the State of Maine, Peter K. Michael, Attorney General, Office of the Attorney General
for the State of Wyoming, Eric T. Schneiderman, Attorney General at the time the brief was filed, Office of the
Attorney General for the State of New York, and Sean
D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, were on the brief for amici
curiae States of Washington, et al. in support of intervenors-respondents American Rivers, et al.
Kamala D. Harris, Attorney General at the time
the brief was filed, Office of the Attorney General for
the State of California, Robert W. Byrne, Senior Assistant Attorney General, Eric M. Katz, Supervising Deputy Attorney General, and Ross H. Hirsch and Adam
L. Levitan, Deputy Attorneys General, were on the
3a
brief for amicus curiae California State Water Resources Control Board in support of respondent.
Ellen F. Rosenblum, Attorney General, and Paul
Garrahan, Attorney-In-Charge, Office of the Attorney
General for the State of Oregon, were on the brief for
amicus curiae The State of Oregon in support of respondent.
Before: GRIFFITH and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Hoopa Valley
Tribe (“Hoopa”) petitions for review of Federal Energy
Regulatory Commission (“FERC”) orders, which found
(1) that California and Oregon had not waived their
water quality certification authority under Section 401
of the Clean Water Act (“CWA”) and (2) that PacifiCorp
had diligently prosecuted its relicensing application for
the Klamath Hydroelectric Project (“Project”). Whereas
statutory waiver is mandated after a request has been
pending for more than one year, the issue in this case
is whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly withdrawn and resubmitted water quality
certification requests as new requests. We conclude
that the withdrawal-and-resubmission of water quality certification requests does not trigger new statutory periods of review. Therefore, we grant the petition
and vacate the orders under review.
4a
I.
BACKGROUND
A. Statutory Background
Under Subchapter I of the Federal Power Act
(“FPA”), 16 U.S.C. §§ 791a-823g, Congress granted
FERC authority to regulate the licensing, conditioning,
and development of hydropower projects on navigable
waters. Under Section 401 of the CWA, any applicant
seeking a federal license for an activity that “may result in any discharge into the navigable waters” must
first seek water quality certifications from the controlling states. See 33 U.S.C. § 1341(a)(1). Thus, a state’s
water quality review serves as a precondition to any
federal hydropower license issued by FERC. The statute further provides that state certification requirements “shall be waived with respect to such Federal
application” if the state “fails or refuses to act on a request for certification, within a reasonable period of
time (which shall not exceed one year) after receipt of
such request.” See id. “[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying
a federal licensing proceeding by failing to issue a
timely water quality certification under Section 401.”
Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972
(D.C. Cir. 2011).
B. History of the Klamath Hydroelectric
Project
In this case, the hydropower project in question
consists of a series of dams along the Klamath River in
California and Oregon, which were originally licensed
5a
to a predecessor of PacifiCorp in 1954. Since the original license expired in 2006, PacifiCorp has continued
to operate the Project on annual interim licenses pending the broader licensing process. Due to the age of the
Project, the dams are not in compliance with modern
environmental standards. Since modernizing the dams
was presumably not cost-effective, PacifiCorp sought to
decommission the lower dams. In 2004, PacifiCorp filed
for relicensing with FERC, with a proposal to relicense
the upper dams and decommission the remainder. All
milestones for relicensing have been met except for the
states’ water quality certifications under Section 401.
In 2008, a consortium of parties—California, Oregon,
Native American tribes, farmers, ranchers, conservation groups, fishermen, and PacifiCorp—began settlement negotiations to resolve the procedures and the
risks associated with the dams’ decommissioning.
These negotiations culminated in a formal agreement
in 2010, the Klamath Hydroelectric Settlement Agreement (“KHSA” or the “Agreement”), imposing on PacifiCorp a series of interim environmental measures and
funding obligations, while targeting a 2020 decommission date. Under the KHSA, the states and PacifiCorp
agreed to defer the one-year statutory limit for Section
401 approval by annually withdrawing-and-resubmitting the water quality certification requests that serve
as a pre-requisite to FERC’s overarching review. The
Agreement explicitly required abeyance of all state
permitting reviews:
Within 30 days of the Effective Date, the
Parties, except ODEQ [Oregon Department of
6a
Environmental Quality], will request to the
California State Water Resources Control
Board and the Oregon Department of Environmental Quality that permitting and environmental review for PacifiCorp’s FERC
Project No. 2082 [Klamath Hydroelectric Project] licensing activities, including but not limited to water quality certifications under Section
401 of the CWA and review under CEQA [California Environmental Quality Act], will be
held in abeyance during the Interim Period
under this Settlement. PacifiCorp shall withdraw and re-file its applications for Section
401 certifications as necessary to avoid the
certifications being deemed waived under the
CWA during the Interim Period.
See KHSA at 42.
The parties to the KHSA agreed to a number of
preconditions for decommissioning, the most relevant
of which was the securing of federal funds, which
never occurred. Consequently, on April 6, 2016, a subset of parties from the original KHSA agreed to an
“Amended KHSA,” which created an alternative plan
for decommissioning that contemplated the transfer of
licensing to a company, Klamath River Renewal Corporation (“KRRC”), formed by the signatories of the
Amended KHSA in order to limit potential liability
that existing parties anticipated from decommissioning the dams. Of relevance, Hoopa—whose reservation
is downstream of the Project—was not a party to either
the KHSA or the Amended KHSA.
7a
On September 23, 2016, PacifiCorp filed for an
amended license to enable transfer of the dams to
KRRC. Having never previously considered the transfer of a license for the sole purpose of decommissioning,
and based on legal, technical, and financial concerns,
FERC chose to separately review the applications for
(1) amendment and (2) transfer. On March 15, 2018,
FERC approved splitting the lower dams to a separate
license, but has yet to approve transfer of that license.
PacifiCorp remains the licensee for both of these newly
split licenses.
C. Procedural History
On May 25, 2012, Hoopa petitioned FERC for a declaratory order that California and Oregon had waived
their Section 401 authority and that PacifiCorp had
correspondingly failed to diligently prosecute its licensing application for the Project. On June 19, 2014,
FERC denied that petition. On July 18, 2014, Hoopa
requested rehearing on its original petition, and FERC
denied that request on October 16, 2014. Subsequently,
on December 9, 2014, Hoopa petitioned this Court to
review FERC’s orders. This Court initially held the
case in abeyance once the Amended KHSA was in
place. But the decommissioning the agreement contemplated has yet to occur, and in light of Hoopa’s
pending petition, we removed the case from abeyance
on May 9, 2018.
8a
II.
DISCUSSION
We review FERC orders under the Administrative
Procedure Act (“APA”), which empowers the Court “to
reverse any agency action that is ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.’ ” See, e.g., Wisconsin Valley Improvement v.
FERC, 236 F.3d 738, 742 (D.C. Cir. 2001) (quoting 5
U.S.C. § 706(2)(A)). In conducting the review in this
case, because FERC is not the agency charged with administering the CWA, the Court owes no deference to
its interpretation of Section 401 or its conclusion regarding the states’ waiver. See Alcoa Power, 643 F.3d at
972.
A. Sovereign Immunity
The state of Oregon, an amicus curiae, has challenged this Court’s jurisdiction over the instant matter. Specifically, California and Oregon have exercised
their sovereign immunity under the Eleventh Amendment by refusing to intervene in this review. Oregon
avers a status as an indispensable party because this
review entails a potential finding of the states’ waiver
of their Section 401 authority. Thus, Oregon asserts
that this case must be dismissed, relying on Fed. R. Civ.
P. 19.
However, California and Oregon are not indispensable parties to the instant case. Contrary to Oregon’s
argument, Fed. R. Civ. P. 19 does not govern this joinder issue. See Int’l Union, United Auto. v. Scofield, 382
U.S. 205, 217 n.10 (1965). Rather, as an appellate court
9a
reviewing an agency action, we look to Fed. R. App.
P. 15. Rule 15 only requires the respondent federal
agency as a necessary party to a petition for review—
joinder of no other party is required. See Fed. R. App.
P. 15. With regard to sovereign immunity generally,
Oregon’s position is incompatible with the precepts of
federalism and this Court’s prior precedent. Hoopa’s
petition does not involve a state’s certification decision
or a state’s application of state law, but rather a federal
agency’s order, a matter explicitly within the purview
of this Court when petitioned by an aggrieved party.
See 16 U.S.C. § 825l(b). Indeed, FERC orders regarding
a state’s compliance are properly reviewed by federal
appeals courts whether or not the state is a party to
the review. See, e.g., City of Tacoma v. FERC, 460 F.3d
53 (D.C. Cir. 2006). This is especially true, in cases such
as this, when the dispositive issue on review is the interpretation of federal law. See U.S. Const. art. III, § 2,
cl. 1 (“The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made, or which
shall be made, under their Authority. . . .”). Accordingly, this Court has jurisdiction over the instant matter, and we shall proceed to the merits of Hoopa’s
claims.
B. Waiver under Section 401
Hoopa’s petition presents three theories as bases
for relief: the states’ waiver of their Section 401 authority, PacifiCorp’s failure to diligently prosecute its
licensing application, and FERC’s abdication of its
10a
regulatory duty. However, all of Hoopa’s theories are
connected.
Resolution of this case requires us to answer a single issue: whether a state waives its Section 401 authority when, pursuant to an agreement between the
state and applicant, an applicant repeatedly withdraws-and-resubmits its request for water quality certification over a period of time greater than one year. If
this type of coordinated withdrawal-and-resubmission
scheme is a permissible manner for tolling a state’s
one-year waiver period, then (1) California and Oregon
did not waive their Section 401 authority; (2) PacifiCorp did not fail to diligently prosecute its application;
and (3) FERC did not abdicate its duty. However, if
such a scheme is ineffective, then the states’ and licensee’s actions were an unsuccessful attempt to circumvent FERC’s regulatory authority of whether and
when to issue a federal license.
Determining the effectiveness of such a withdrawaland-resubmission scheme is an undemanding inquiry
because Section 401’s text is clear.
If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act
on a request for certification, within a reasonable period of time (which shall not exceed one
year) after receipt of such request, the certification requirements of this subsection shall
be waived with respect to such Federal application. No license or permit shall be granted
until the certification required by this section
11a
has been obtained or has been waived as provided in the preceding sentence.
See 33 U.S.C. § 1341(a)(1). The temporal element imposed by the statute is “within a reasonable period
of time,” followed by the conditional parenthetical,
“(which shall not exceed one year).” See id. Thus, while
a full year is the absolute maximum, it does not preclude a finding of waiver prior to the passage of a full
year. Indeed, the Environmental Protection Agency
(“EPA”)—the agency charged with administering the
CWA—generally finds a state’s waiver after only six
months. See 40 C.F.R. § 121.16.
The pendency of the requests for state certification
in this case has far exceeded the one-year maximum.
PacifiCorp first filed its requests with the California
Water Resources Control Board and the Oregon Department of Environmental Quality in 2006. Now,
more than a decade later, the states still have not rendered certification decisions. FERC “sympathizes” with
Hoopa, noting that the lengthy delay is “regrettable.”
According to FERC, it is now commonplace for states
to use Section 401 to hold federal licensing hostage. At
the time of briefing, twenty-seven of the forty-three licensing applications before FERC were awaiting a
state’s water quality certification, and four of those had
been pending for more than a decade.
Implicit in the statute’s reference “to act on a request for certification,” the provision applies to a specific request. See 33 U.S.C. § 1341(a)(1) (emphasis
added). This text cannot be reasonably interpreted to
12a
mean that the period of review for one request affects
that of any other request. In its decision, FERC used
this text to rescue the states from waiver. FERC found
that while PacifiCorp’s various resubmissions involved
the same Project, each resubmission was an independent request, subject to a new period of review. Thus,
FERC averred that the states had not failed to act. In
doing so, FERC acted arbitrarily and capriciously.
The record does not indicate that PacifiCorp withdrew its request and submitted a wholly new one in its
place, and therefore, we decline to resolve the legitimacy of such an arrangement. We likewise need not
determine how different a request must be to constitute a “new request” such that it restarts the one-year
clock. This case presents the set of facts in which a
licensee entered a written agreement with the reviewing states to delay water quality certification. PacifiCorp’s withdrawals-and-resubmissions were not just
similar requests, they were not new requests at all.
The KHSA makes clear that PacifiCorp never intended
to submit a “new request.” Indeed, as agreed, before
each calendar year had passed, PacifiCorp sent a letter
indicating withdrawal of its water quality certification
request and resubmission of the very same . . . in the
same one-page letter . . . for more than a decade. Such
an arrangement does not exploit a statutory loophole;
it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing
of a hydropower project.
While the statute does not define “failure to act” or
“refusal to act,” the states’ efforts, as dictated by the
13a
KHSA, constitute such failure and refusal within the
plain meaning of these phrases. Section 401 requires
state action within a reasonable period of time, not to
exceed one year. California and Oregon’s deliberate
and contractual idleness defies this requirement. By
shelving water quality certifications, the states usurp
FERC’s control over whether and when a federal license will issue. Thus, if allowed, the withdrawal-andresubmission scheme could be used to indefinitely
delay federal licensing proceedings and undermine
FERC’s jurisdiction to regulate such matters.
Congress intended Section 401 to curb a state’s
“dalliance or unreasonable delay.” See, e.g., 115 Cong.
Rec. 9264 (1969). This Court has repeatedly recognized
that the waiver provision was created “to prevent a
State from indefinitely delaying a federal licensing
proceeding.” See Alcoa Power, 643 F.3d at 972-73; Millennium Pipeline Co. v. Seggos, 860 F.3d 696, 701-02
(D.C. Cir. 2017).
While caselaw offers some guidance regarding a
state’s waiver, e.g., North Carolina v. FERC, 112 F.3d
1175, 1183-85 (D.C. Cir. 1997), this Court has never addressed the specific factual scenario presented in this
case, i.e., an applicant agreeing with the reviewing
states to exploit the withdrawal-and-resubmission of
water quality certification requests over a lengthy period of time. In its supplemental brief, FERC directs
the Court’s attention to a Second Circuit opinion which
suggested, in light of various practical difficulties, that
a state could “request that the applicant withdraw and
resubmit the application.” See New York State Dep’t of
14a
Envtl. Conservation v. FERC, 884 F.3d 450, 455-56 (2d
Cir. 2018) (citing Constitution Pipeline Co., LLC v. New
York State Dep’t of Envtl. Conservation, 868 F.3d 87, 94
(2d Cir. 2017)). That suggestion was not central to the
court’s holding. The dicta was offered to rebut the state
agency’s fears that a one-year review period could result in incomplete applications and premature decisions. See id. (identifying denial without prejudice as
another alternative).
While it is the role of the legislature, not the judiciary, to resolve such fears, those trepidations are inapplicable to the instant case. The record indicates
that PacifiCorp’s water quality certification request
has been complete and ready for review for more than
a decade. There is no legal basis for recognition of an
exception for an individual request made pursuant to
a coordinated withdrawal-and-resubmission scheme,
and we decline to recognize one that would so readily
consume Congress’s generally applicable statutory
limit. Accordingly, we conclude that California and Oregon have waived their Section 401 authority with regard to the Project.
C. Futility
FERC postulated that a finding of waiver would
require the agency to deny PacifiCorp’s license. As a
result, PacifiCorp would have to file a decommissioning
plan for the Klamath dams, and since decommissioning of the Project is an activity that itself would result
in a “discharge into the navigable waters,” that plan
15a
would be subject to its own set of the oft-delayed state
water quality certifications. Thus, in a futile sequence
of events, the Project would revert back to its present
state, only burdened with additional delays.
FERC may be correct that “[i]ndefinite delays in
processing [licensing] applications are . . . not in the
public interest.” See Georgia-Pacific Corp., 35 FERC
¶ 61120, 61248 n.8 (Apr. 25, 1986). However, such practical concerns do not trump express statutory directives. See supra Section II.B. Regardless, had FERC
properly interpreted Section 401 and found waiver
when it first manifested more than a decade ago, decommissioning of the Project might very well be underway.
Further, FERC possesses a critical role in protecting the public interest in hydropower projects. See 16
U.S.C. §§ 797(e), 803(a), 808(a). FERC solicits comments
from interested parties and holds public meetings.
See, e.g., U.S. Dep’t of Interior v. FERC, 952 F.2d 538,
540 (D.C. Cir. 1992). FERC may also “participate in
an advisory role in settlement discussions or review
proposed settlements” for the development or decommissioning of such projects. See Settlements in Hydropower Licensing Proceedings under Part I of the
Federal Power Act, 116 FERC ¶ 61270, 62086 (Sept. 1,
2006). Here, it did neither. Hoopa’s interests are not
protected directly as it is not a party to the KHSA
or Amended KHSA, nor are its interests protected indirectly through any participation by FERC in those
same settlement agreements. Therefore, we disagree that
a finding of waiver is futile because, at a minimum, it
16a
provides Hoopa and FERC an opportunity to rejoin the
bargaining table.
III. CONCLUSION
For the reasons set forth above, we vacate and remand the rulings under review. FERC shall proceed
with its review of, and licensing determination for, the
Klamath Hydroelectric Project.
17a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
-----------------------------------------------------------------------
No. 14-1271
September Term, 2018
FERC-P-2082-61
Filed On: April 26, 2019
Hoopa Valley Tribe,
Petitioner
v.
Federal Energy Regulatory Commission,
Respondent
-----------------------American Rivers, et al.,
Intervenors
BEFORE: Griffith and Pillard, Circuit Judges;
Sentelle*, Senior Circuit Judge
ORDER
Upon consideration of the petition of respondentintervenors American Rivers, California Trout, and
Trout Unlimited for panel rehearing, and the response
thereto; the motions of the States of Oregon, et al.,
the California State Water Resources Control Board
(“California Board”), and the Karuk Tribe, et al., for
* Senior Circuit Judge Sentelle would deny the motions of
the States of Oregon, et al., and the California Board for invitation to file briefs amici curiae.
18a
invitation to file briefs amici curiae, and the lodged
briefs amici curiae; and the motion of respondentintervenor PacifiCorp for leave to file a response and
the lodged response, it is
ORDERED that the motions filed by the States of
Oregon, et al. and the California Board for invitation
to file briefs amici curiae be granted. The Clerk is directed to file the lodged briefs. It is
FURTHER ORDERED that the motion filed by
the Karuk Tribe, et al. for invitation to file brief amici
curiae be denied. The Clerk is directed to note the
docket accordingly. It is
FURTHER ORDERED that the motion of PacifiCorp for leave to file a response be granted. The Clerk
is directed to file the lodged response. It is
FURTHER ORDERED that the petition for
panel rehearing be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
19a
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
-----------------------------------------------------------------------
No. 14-1271
September Term, 2018
FERC-P-2082-61
Filed On: April 26, 2019
Hoopa Valley Tribe,
Petitioner
v.
Federal Energy Regulatory Commission,
Respondent
-----------------------American Rivers, et al.,
Intervenors
BEFORE: Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith, Srinivasan, Millett,
Pillard, Wilkins, Katsas, and Rao*, Circuit Judges; Sentelle**, Senior Circuit
Judge
ORDER
Upon consideration of the petition of respondentintervenors American Rivers, California Trout, and
* Circuit Judge Rao did not participate in this matter.
** Senior Circuit Judge Sentelle would deny the motions of
the States of Oregon, et al., and the California Board for invitation to file briefs amici curiae.
20a
Trout Unlimited for rehearing en banc, and the absence of a request by any member of the court for a
vote; and the motions of the States of Oregon, et al., the
California State Water Resources Control Board (“California Board”), and the Karuk Tribe, et al., for invitation to file briefs amici curiae, and the lodged briefs
amici curiae, it is
ORDERED that the motions of the States of Oregon, et al. and the California Board for invitation to file
briefs amici curiae be granted. The Clerk is directed to
file the lodged briefs. It is
FURTHER ORDERED that the motion of Karuk
Tribe, et al. for invitation to file brief amici curiae be
denied. The Clerk is directed to note the docket accordingly. It is
FURTHER ORDERED that the petition for rehearing en banc be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken Meadows
Deputy Clerk
21a
2014 WL 2794387
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Cheryl A. LaFleur, Acting
Chairman; Philip D. Moeller, John R. Norris, and Tony
Clark.
PacifiCorp
Project No., 2082-058
ORDER DENYING PETITION
FOR DECLARATORY ORDER
(Issued June 19, 2014)
1. The Hoopa Valley Tribe (Tribe) has filed a petition
for a declaratory order asking the Commission to find
that PacifiCorp, the licensee for the Klamath Hydroelectric Project No. 2082, has failed to diligently pursue
relicensing of the project, dismiss PacifiCorp’s relicense application, and direct PacifiCorp to file a plan
for decommissioning the project. In the alternative, the
Tribe asks the Commission to declare that the State of
California Water Resources Control Board (California
Water Board) and the Oregon Department of Environmental Quality (Oregon DEQ) have waived their
authority to issue water quality certification for the
project pursuant to the Clean Water Act. This order denies the petition.
22a
Background
2. The 169-megawatt Klamath Project is located
principally on the Klamath River in Klamath County,
Oregon and Siskiyou County, California.1 The project
includes seven hydroelectric developments and one
non-generating dam.2 The Commission’s predecessor,
the Federal Power Commission, issued a 50-year original license for the project in 1954. The license expired
in 2006 and the project has been operated under annual license since that time.3
3. On February 25, 2004, PacifiCorp filed with the
Commission an application for a new license for the
Klamath Project. The company proposed to relicense
five of the project’s generating developments and to decommission the other three developments, including
the non-generating development. In November 2007,
Commission staff issued a Final Environmental Impact Statement (EIS) in the relicensing proceeding.4
Staff recommended adopting PacifiCorp’s proposal,
with the addition of a number of environmental measures.
4. On March 5, 2010, PacifiCorp filed with the Commission the Klamath Hydroelectric Settlement Agreement
1
One development is located on Fall Creek, a tributary to
the Klamath.
2
See Final Environmental Impact Statement for Hydropower
License, Klamath Hydroelectric Project, Federal Energy Regulatory Commission, Office of Energy Projects (November 2007) at
xxxiii.
3
See 16 U.S.C. § 808(a)(1) (2012).
4
See n.2, infra.
23a
(Settlement Agreement). The Settlement Agreement,
which was signed by the Governors of the States of
California and Oregon, PacifiCorp, the U.S. Department of the Interior, the Department of Commerce’s
National Marine Fisheries Service, several Indian
tribes (not including the Hoopa Tribe), and a number
of local counties, irrigators, and conservation and fishing groups, provided for the future removal of PacifiCorp’s licensed Klamath River dams, with a target
date of 2020. The parties did not ask the Commission
to act on the agreement, the completion of which was
contingent on the passage of federal legislation and action by the Secretary of the Interior.
5. To date, no federal legislation regarding the Settlement Agreement has been enacted,5 and the parties
have not requested Commission action.
6. Under section 401(a)(1) of the Clean Water Act,6
the Commission may not issue a license authorizing
the construction or operation of a hydroelectric project
unless the state water quality certifying agency has either issued a Water Quality Certification for the project or has waived certification by failing to act on a
request for certification within a reasonable period of
time, not to exceed one year.
5
On May 21, 2014, Senator Wyden introduced S. 2379, entitled, “A bill to approve and implement the Klamath Basin agreements, to improve natural resource management, support economic
development, and sustain agricultural production in the Klamath
River Basin in the public interest and the interest of the United
States, and for other purposes.”
6
33 U.S.C. § 1341(a)(1) (2012).
24a
7. PacifiCorp filed a request for water quality certification with the California Water Board on March 29,
2006. Since then, the company has withdrawn and refiled its application eight times. Similarly, PacifiCorp
filed a request for certification with Oregon DEQ on
March 29, 2006, and has withdrawn and refiled its
application eight times. In refiling its applications,
PacifiCorp has noted that the Settlement Agreement
requires it to do so in order to avoid waiver by the water quality certifying agencies.7
8. On May 25, 2012, the Tribe filed a petition for a
declaratory order, asking the Commission to find that
PacifiCorp has failed to diligently pursue relicensing of
the project and accordingly require the company to file
a plan for decommissioning the project, or, in the alternative, find that California and Oregon have waived
water quality certification and issue a new license for
the project.
9. On June 25, 2012, PacifiCorp, on behalf of itself
and 16 other parties, filed an answer opposing the petition. Also on June 25, 2012, the County of Siskiyou
and Siskiyou County Flood Control and Water Conservation District filed an answer opposing project decommissioning but urging issuance of a license.
7
See, e.g., letter from Mark A. Sturtevant (PacifiCorp) to
Kimberly D. Bose (Commission Secretary), enclosing December 2,
2033 letter from PacifiCorp to Oregon Department of Water Quality (filed December 16, 2013).
25a
Discussion
10. The Tribe argues that PacifiCorp is not taking action to obtain water quality certification and thus is
not diligently pursuing its license application.8 The
Tribe therefore asks the Commission to dismiss the relicense application and require the company to file a
plan to decommission the project.9
11. We agree with the Tribe that the circumstances
of this case are far from ideal. As noted above, Commission staff issued the EIS in November 2007. The
Commission could act on PacifiCorp’s application but
for the absence of water quality certification.10 The
Klamath Project is operating under the terms of the
1954 license, and, as a result, the many environmental
benefits that could accrue under the new license have
not occurred.11 Under the express terms of the Clean
Water Act, however, the Commission cannot issue and
implement a new license until water quality certification has been issued.
8
Petition at 1-12.
Id. at 12-13.
10
There is also a need to conclude consultation under the National Historic Preservation Act, but such matters, as a rule, do
not delay license issuance.
11
While we cannot and do not consider the license application now, we note, as a general matter, that all licenses we have
issued in recent times contain substantially more environmental
measures than those issued 50 years ago, before any of the current environmental statutes were enacted and before the Federal
Power Act was amended to enhance consideration of environmental matters.
9
26a
12. We also agree with the Tribe that PacifiCorp has
been complicit with the parties to the Settlement
Agreement in agreeing to delay water quality certification, and that there is no apparent prospect of the federal legislation called for by the settlement being
passed or of the necessary actions by the Secretary of
the Interior taking place. Again, as the Tribe asserts,
infinite delays in licensing proceedings are not in the
public interest. Indeed, they are contrary to it.
13. Nonetheless, the remedy suggested by the Tribe
—requiring PacifiCorp to file a decommissioning plan
—would not resolve the impasse here. Any major decommissioning would likely result in some form of discharge into the navigable waters, meaning that the
Commission could not implement decommissioning
without a water quality certification.12 Given that we
would be acting contrary to the process envisioned by
all the parties to the settlement, including the two water quality certifying agencies, it appears unlikely that
the agencies would issue certification for a decommissioning process that did not comport with the terms of
the settlement to which they have agreed.13 It seems
12
See, e.g., Duke Energy Carolinas, LLC, 120 FERC ¶ 61,054
(2007) at PP 33-36 (stating that Commission could not accept license surrender, which included dam removal, without state water quality certification), reh’g denied, 123 FERC ¶ 61,069 at 1721) (2008), aff ’d, Jackson County v. FERC, 589 F.3d 1284 (D.C.
Cir. 2009).
13
Another likely outcome might be for PacifiCorp to file the
Settlement Agreement as its decommissioning plan, even though
the plan could not be implemented absent Congressional and executive department action.
27a
more probable that they would either deny certification, thereby precluding decommissioning, or work
with PacifiCorp and the other parties to repeatedly delay certification, as has already occurred in this case.
14. In addition, while we do have the authority to order a licensee to decommission a project,14 we have
done so only once in the absence of the licensee’s consent, upon a finding that the facts of the case required
that outcome.15 Here, we have not concluded based on
the record that decommissioning is required, and thus
lack a basis for imposing such a requirement.16 We are
also unsure how demanding that PacifiCorp file a decommissioning plan when it had already taken substantial steps in that direction in concert with a large
number of parties would yield a positive result. If we
had a viable way to require the parties to move forward, we would certainly consider it. We do not see
such an option before us.
15. The Tribe asks that, if we do not dismiss PacifiCorp’s license application for lack of diligence and require a decommissioning plan, we issue a license,
based on the conclusion that California and Oregon
have waived water quality certification by failing to act
14
See Edwards Manufacturing Company, Inc. and City of
Augusta, Maine, 81 FERC ¶ 61,255 at 62,207-09 (1997).
15
Id.
16
Without in any way prejudging the merits of the relicensing proceeding, we note that the EIS prepared by our staff recommended decommissioning only some of the project dams, consist
with PacifiCorp’s licensing proposal. We would at a minimum seriously consider staff ’s recommendation in acting in this case.
28a
by the deadline established by the Clean Water Act —
a reasonable period of time, not to exceed one year from
the filing of a request for certification.17 The Tribe contends that the states’ failure to act within one year and
their agreement with PacifiCorp not to do so amount
to waiver.18
16. Again, we have some sympathy with the Tribe’s
argument. Indefinite delays in licensing proceedings
do not comport with at least the spirit of the Clean Water Act and have the effect of preventing us from issuing new licenses that are best adapted to a current
comprehensive plan for improving or developing a waterway in the public interest.19 We have previously
stated that we “cannot endorse procedures that result
in undue extensions of the licensing process. . . . [Such
an] inordinate delay was hardly what Congress contemplated in crafting the one-year certification deadline.”20
17. In this case, however, we see little to be gained
from finding that the states have waived certification
and then issuing a license. It is clear that PacifiCorp
and the other settling parties are committed to the process envisioned in the Settlement Agreement. PacifiCorp states in its opposition to the petition that it is
endeavoring to implement the terms of the Settlement
17
See 33 U.S.C. § 1341(a) (2012).
Petition at 14-21.
19
See 16 U.S.C. § 808(a) (2012).
20
Central Vermont Public Service Corporation, 113 FERC
¶ 61,167, at P 16, n.14 (2005).
18
29a
Agreement, and will pursue relicensing if the agreement terminates. Given that we cannot require a licensee to accept a license, and that PacifiCorp views itself
as bound to follow the settlement, we see little point in
pursuing a course that would almost certainly leads
[sic] to protracted litigation and would be unlikely to
resolve the issues in this proceeding.
The Commission orders:
The petition for declaratory order filed by the Hoopa
Valley Tribe on May 25, 2012, is denied.
By the Commission.
(SEAL)
Kimberly D. Bose
Secretary
30a
2014 WL 5293211
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Cheryl A. LaFleur, Chairman;
Philip D. Moeller, Tony Clark, and Norman C. Bay.
PacifiCorp
Project No., 2082-061
ORDER DENYING REHEARING
(Issued October 16, 2014)
1. The Hoopa Valley Tribe (Tribe) has requested rehearing of the Commission’s June 19, 2014, order1
denying the Tribe’s petition for a declaratory order either (1) finding that PacifiCorp, the licensee for the
Klamath Hydroelectric Project No. 2082, has failed
to diligently pursue relicensing of the project, dismissing PacifiCorp’s relicense application, and directing
PacifiCorp to file a plan for decommissioning the project, or (2) in the alternative, declaring that the State
of California Water Resources Control Board (California Water Board) and the Oregon Department of Environmental Quality (Oregon DEQ) have waived their
authority to issue water quality certification for the
project pursuant to the Clean Water Act. As discussed
below, we deny rehearing.
1
PacifiCorp, 147 FERC ¶ 61,216 (2014) (June 19 Order).
31a
Background
2. The 169-megawatt Klamath Project is located
principally on the Klamath River in Klamath County,
Oregon and Siskiyou County, California.2 The project
includes seven hydroelectric developments and one
non-generating dam.3 The Commission’s predecessor,
the Federal Power Commission, issued a 50-year original license for the project in 1954. The license expired
in 2006 and the project has been operated under annual license since that time.4
3. On February 25, 2004, PacifiCorp filed with the
Commission an application for a new license for the
Klamath Project. The company proposed to relicense
five of the project’s generating developments and to decommission the other three developments, including
the non-generating development. In November 2007,
Commission staff issued a Final Environmental Impact
Statement (EIS) in the relicensing proceeding.5 Staff
recommended adopting PacifiCorp’s proposal, with the
addition of a number of environmental measures.
4. On March 5, 2010, PacifiCorp filed with the Commission the Klamath Hydroelectric Settlement Agreement
(Settlement Agreement). The Settlement Agreement,
2
One development is located on Fall Creek, a tributary to
the Klamath.
3
See Final Environmental Impact Statement for Hydropower
License, Klamath Hydroelectric Project, Federal Energy Regulatory Commission, Office of Energy Projects (November 2007) at
xxxiii.
4
See 16 U.S.C. § 808(a)(1) (2012).
5
See n.2, infra.
32a
which was signed by the Governors of the States of
California and Oregon, PacifiCorp, the U.S. Department of the Interior, the Department of Commerce’s
National Marine Fisheries Service, several Indian
tribes (not including the Hoopa Tribe), and a number
of local counties, irrigators, and conservation and fishing groups, provided for the future removal of PacifiCorp’s licensed Klamath River dams, with a target
date of 2020. The parties did not ask the Commission
to act on the agreement, the completion of which is contingent on the passage of federal legislation and action
by the Secretary of the Interior.
5. To date, no federal legislation regarding the Settlement Agreement has been enacted,6 and the parties
have not requested Commission action.
6. Under section 401(a)(1) of the Clean Water Act,7
the Commission may not issue a license authorizing
the construction or operation of a hydroelectric project
unless the state water quality certifying agency has either issued a Water Quality Certification for the project or has waived certification by failing to act on a
request for certification within a reasonable period of
time, not to exceed one year.
6
On May 21, 2014, Senator Wyden introduced S. 2379, entitled,
“A bill to approve and implement the Klamath Basin agreements,
to improve natural resource management, support economic development, and sustain agricultural production in the Klamath
River Basin in the public interest and the interest of the United
States, and for other purposes.”
7
33 U.S.C. § 1341(a)(1) (2012).
33a
7. PacifiCorp filed a request for water quality certification with the California Water Board on March 29,
2006. Since then, the company has withdrawn and refiled its application eight times. Similarly, PacifiCorp
filed a request for certification with Oregon DEQ on
March 29, 2006, and has withdrawn and refiled its application eight times.
8. On May 25, 2012, the Tribe filed a petition for a
declaratory order, asking the Commission to find that
PacifiCorp has failed to diligently pursue relicensing of
the project and accordingly require the company to file
a plan for decommissioning the project, or, in the alternative, find that California and Oregon have waived
water quality certification and issue a new license for
the project.
9. In the June 19 order, the Commission denied the
Tribe’s petition. We explained that, while the circumstances of the Klamath project relicensing are far from
ideal, the Commission is barred by the Clean Water
Act from issuing a new license in the absence of water
quality certification from Oregon and California. We
further concluded that ordering PacifiCorp to file a decommissioning plan would be unlikely to resolve the
current impasse, given that the great majority of parties to the relicensing are pursuing implementation of
the settlement, and that decommissioning would probably require water quality certification, which the
states, as supporters of the settlement process, would
not likely issue.8 With respect to the Tribe’s assertion
8
June 19 Order, 147 FERC ¶ 61,216 at P 11.
34a
that we should find that California and Oregon have
waived water quality certification, we found that there
was little point in pursuing a course that would almost
certainly lead to protracted litigation and would be unlikely to resolve the issues in this proceeding.9
10. On July 18, 2014, the Tribe filed a timely request
for rehearing.
Discussion
A. Dismissal of the Relicensing Application
11. The Tribe reiterates its assertions that PacifiCorp
is diligently pursuing neither the issuance of a new
license nor water quality certification, and that delay
in relicensing is not in the public interest.10 It asserts
that our conclusion that a decommissioning plan would
require water quality certification that the states would
be unlikely to issue is unsupported by the record and
an insufficient basis for denying its petition.11 The
Tribe further argues that, if the Commission were to
grant the Tribe’s petition, decommissioning would be
the only appropriate course of action. It contends that
the Commission must not let the settlement process
9
Id. P 17.
Request for rehearing at 12-14. The Tribe notes that the
Commission has the authority to deny a new license to an applicant seeking relicensing. Id. at 14. While this is true, it does not
assist us in resolving this case. Denying a new license where no
party, other than the Tribe, seeks such a result, and, indeed,
where our staff in the Final EIS recommended issuing a new license, would be difficult to justify.
11
Id. at 14-17.
10
35a
play out, but should either dismiss PacifiCorp’s application for lack of prosecution or find that the states
have waived water quality certification.12
12. Given that neither the Federal Power Act nor our
regulations impose any requirements with respect to
situations such as that presented here, we have considerable discretion with respect to administering this
proceeding. Indeed, “the formulation of procedures [is]
basically to be left within the discretion of the agencies
to which Congress [has] confided the responsibility for
substantive judgments.”13 The Tribe points to nothing
in law, regulation, or precedent that requires us to find
that PacifiCorp’s application should be dismissed.
13. As we explained in the June 19 order, lengthy delays in licensing proceedings are contrary to the public
interest.14 At the same time, we see little to be gained
by taking steps that would likely result in further delay, litigation, and extensive expenditures of time and
money by the parties and the Commission. While it
is unfortunately the case that there are relicensing
proceedings that have been pending for many years
12
Id. at 17-20. The Tribe asserts that the fact that we have
not taken action on the Settlement Agreement is contrary to our
settlement policy. Id. at 5, n.8 (citing Settlements in Hydropower
Licensing Proceedings under Part I of the Federal Power Act, 116
FERC ¶ 61,270 (2006)). Nothing in our policy or practice requires
us to act on settlements where, as here, the parties explicitly file
an agreement for the Commission’s information only, and not for
Commission action.
13
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, 435 U.S. 519, 524-25 (1978).
14
June 19 Order, 147 FERC § 61, 216 at P 12.
36a
awaiting water quality certification,15 there has been
no such instance in which we have dismissed a relicense application for the licensee’s failure to diligently
pursue the application, in large part because of the
confusion such an action would cause and because we
have not seen a clear path to resolving the issues in
these cases.16
14. We disagree with the Tribe’s assertion that we
lacked a basis in the record for suggesting that California and Oregon would be no more likely to issue water
quality certification for a project decommissioning proceeding than they have been during the relicensing
proceeding.17 In the June 19 Order, we explained that
“[g]iven that we would be acting contrary to the process envisioned by all the parties to the settlement, including the two water quality certifying agencies, it
appears unlikely that the agencies would issue certification
for a decommissioning process that did not comport
with the terms of the settlement to which they have
15
For example, relicensing of the Hells Canyon Project No.
1971 and the Poe Project No. 2107 has been pending since 2003,
while the Upper North Fork Feather River relicensing has been
awaiting water quality certification since 2002, and the Waterbury Project No. 2090 has been pending since 1999. Of 43 pending
license applications regarding which our staff has completed its
environmental analysis, 29 (67 percent) area waiting water quality certification.
16
We continue to consider whether there are actions or incentives we can take that may be appropriate in individual proceedings to break these logjams.
17
Request for Rehearing at 16.
37a
agreed.”18 There is indeed no direct evidence in the record as to how the agencies would react were we to
grant the Tribe’s petition,19 but our experience, both in
this proceeding and generally, led us to conclude that
California and Oregon could not be expected to act
more promptly to authorize an outcome they do not
support20 than they have in the relicensing proceeding.
We continue to find this conclusion reasonable.
15. The Tribe is also incorrect in asserting that requiring a decommissioning plan would be the only alternative in the case of a dismissed application. We
could, for example, consider the project to be orphaned
and seek other applications,21 or we could issue PacifiCorp a non-power license for all or part of the project.22
16. In sum, the Tribe has shown no error in our decision to deny its request that we dismiss PacifiCorp’s
application and we deny rehearing on this matter.
18
June 19 Order, 147 FERC ¶ 61,216 at P 13.
It is difficult to envision what evidence there could be, absent a statement by the agencies as to what they would do in a
hypothetical situation.
20
As noted in the June 19 order, a number of parties, including PacifiCorp, Oregon DEQ, and the California Water Board, opposed the Tribes petition.
21
See 18 C.F.R. § 61.25 (2014). While this section explicitly
deals with instances in which a license [sic] fails to file a timely,
complete application, we believe that it would be applicable in the
case of an application that we elected to dismiss later in a proceeding.
22
See 16 U.S.C. § 808(f) (2012).
19
38a
B. Waiver of Water Quality Certification
The Tribe argues that we erred in not determining
that California and Oregon have waived water quality
certification. The Tribe notes that section 401(a)(1) of
the Clean Water Act provides that if a state “fails or
refuses to act on a request for certification, within a
reasonable time (which shall not exceed one year) after
receipt of such request, the certification . . . shall be
waived . . . ,”23 and states that the question whether
waiver has occurred is a federal question to be decided
by the Commission.24 The Tribe cites a number of
cases, as well as legislative history, for the proposition
that Congress intended the one-year deadline to avoid
undue state delay of the federal proceedings.25
18. We agree with the Tribe that continued delays in
completing the water quality certification are inconsistent with Congress’ intent. We further agree that, in
licensing proceedings before it, the Commission has
the obligation to determine whether a state has complied with the procedures required by the Clean Water
Act, including whether a state has waived certification.26
23
See 33 U.S.C. § 1341(a)(1) (2012).
Request for Rehearing at 20-21.
25
Id. at 22-23.
26
See, e.g., Alcoa Power Generating Inc. v. FERC, 643 F.3d
963 (D.C. Cir. 2011) (affirming, as a federal question, the Commission’s determination that a state had not waived certification);
City of Tacoma v. FERC, 460 F.3d 53 (D.C. Cir. 2006) (stating that
the Commission was obligated to inquire as to whether a state
satisfied the Clean Water Act’s notice requirements); Keating v.
24
39a
19. We part company with the Tribe on whether certification has been waived in this case. The Tribe carefully hedges its argument, maintaining that it “does
not ask the Commission to declare that the practice of
‘withdrawal and resubmission’ is unlawful in every instance,”27 but is so only under the facts of this case, including the states’ not acting within one year of the
initial certification requests, the passage of time since
the original requests, the delay in the relicensing proceeding, the states’ agreement with the licensee not to
move forward on certification, and the fact the licensee
continues to operate its project under the terms of its
existing license.28
20. We continue to be concerned that states and licensees that engage in repeated withdrawal and refiling of applications for water quality certification are
acting, in many cases, contrary to the public interest
by delaying the issuance of new licenses that better
meet current-day conditions than those issued many
decades ago, and that these entities are clearly violating the spirit of the Clean Water Act by failing to provide reasonably expeditious state decisions; however,
notwithstanding that concern, we do not conclude that
they have violated the letter of that statute. Section
401(a)(1) provides that a state waives certification
when it does not act on an application within one year.
FERC, 927 F.2d 616 (D.C. Cir. 1991) (holding that the Commission was obligated to determine the effectiveness of a state’s purported revocation of certification).
27
Request for Rehearing at 25.
28
Id. at 25-26.
40a
The Act therefore speaks solely to state action or in action, rather than the repeated withdrawal and refiling
of applications. By withdrawing its applications before
a year has passed, and presenting the states with new
applications, PacifiCorp has, albeit repeatedly, given
the states new deadlines. The record does not reveal
that either state has in any instance failed to act on an
application that has been before it for more than one
year. Again, while the Commission continues to be concerned that these entities are violating the spirit of the
Clean Water Act, the particular circumstances here, including the length of the delay, do not demand a different result because the Act speaks directly only to state
action within one year of a certification request. Accordingly, we find that California and Oregon have not
waived water quality certification in this case.
21. The Tribe’s reliance on Central Vermont Public
Service Corporation29 is unavailing. In that case, although the state and the licensee had agreed that the
licensee would withdraw and refile its water quality
certification application on an annual basis, the licensee ultimately failed to do so and the state did not act
on the then-pending application before the one-year
deadline. We held that the passage of the deadline resulted in waiver, regardless of the fact that the two parties had intended to continue the withdrawal and
refiling process: the governing fact was the expiration
of the one-year period.30 Here, whether for good or ill,
29
113 FERC ¶ 61,167 (2005) (Central Vermont). See Request
for Rehearing at 23-24.
30
See Central Vermont, 113 FERC ¶ 61,167 at PP 15-16.
41a
PacifiCorp has withdrawn and refiled its certification
applications numerous times. The Tribe does not assert that the states missed the one-year deadline with
respect to any single one of the company’s applications.
In essence, PacifiCorp and the states have avoided the
error that Vermont and the licensee in that proceeding
made. Accordingly, Central Vermont is inapposite here.
22. The Tribe goes on to argue that our decision not
to declare that California and Oregon have waived water quality certification is arbitrary, capricious, and an
abuse of discretion. The Tribe again asserts that our
conclusions that the parties to the settlement are committed to it is unsupported by the record and that the
public interest requires us to issue a new license or a
decommissioning order.31
31
Request for Rehearing at 26-30. The Tribe also objects to
what it asserts is the Commission’s “failure to reinitiate the licensing process [[because] it cannot require a licensee to accept a
license.” Id. at 29. In the June 19 Order, 147 FERC ¶ 61,216 at
P 17, we simply intended to indicate that the likely negative reaction to our issuing a license that ignored the wishes of the settling parties gave us little incentive to pursue untested legal
theories. We nonetheless fully agree with the Tribe that we must
issue licenses that satisfy the public interest standards established by the Federal Power Act, and we do not base licensing decisions on whether the applicant (or any other entity) will be
pleased by our actions. We further agree, as noted above, that a
new license would bring the project in line with current environmental standards. Were we to determine that water quality certification has been waived here, we would then issue a license that
we concluded met the public interest, as we have done in other
cases involving waiver. See, e.g., Central Vermont, supra; FPL
Energy Maine Hydro LLC, 139 FERC ¶ 61,215 (2012); Virginia
Electric Power Company d/b/a Dominion Virginia Power/Dominion
42a
23. As we have explained, it is the Clean Water Act
that prescribes when a state agency has waived certification; it is not an exercise of discretion vested in the
Commission. If our interpretation of the statute is incorrect, that would be for the courts to determine.32 As
to the adherence of the settling parties to their agreement, we have no way of knowing how firm their commitment is, but we think it a reasonable assumption
that entities will support an agreement which they
have voluntarily negotiated and signed.
The Commission orders:
The request for rehearing filed by the Hoopa Valley Tribe on July 18, 2014, is denied.
By the Commission.
(SEAL)
Kimberly D. Bose
Secretary
North Carolina Power, 110 FERC ¶ 61,241 (2005); Gustavus Electric Company, 109 FERC ¶ 61,105, reh’g denied, 110 FERC ¶ 61,334
(2004).
32
See Alabama Rivers Alliance v. FERC, 325 F.3d 290, 29697 (D.C.Cir.2003) (noting that the Commission’s interpretation of
Section 401 of the Clean Water Act is entitled to no deference by
the court because the Environmental Protection Agency, and not
the Commission, is charged with administering the Clean Water
Act, and that judicial review of the Commission’s interpretation
of Section 401 is de novo).
43a
TITLE 33—NAVIGATION AND
NAVIGABLE WATERS
SUBCHAPTER IV—PERMITS AND LICENSES
§ 1341. Certification
(a) Compliance with applicable requirements;
application; procedures; license suspension
(1) Any applicant for a Federal license or permit
to conduct any activity including, but not limited to,
the construction or operation of facilities, which may
result in any discharge into the navigable waters, shall
provide the licensing or permitting agency a certification from the State in which the discharge originates
or will originate, or, if appropriate, from the interstate
water pollution control agency having jurisdiction over
the navigable waters at the point where the discharge
originates or will originate, that any such discharge
will comply with the applicable provisions of sections
1311, 1312, 1313, 1316, and 1317 of this title. In the
case of any such activity for which there is not an applicable effluent limitation or other limitation under
sections 1311(b) and 1312 of this title, and there is
not an applicable standard under sections 1316 and
1317 of this title, the State shall so certify, except that
any such certification shall not be deemed to satisfy
section 1371(c) of this title. Such State or interstate
agency shall establish procedures for public notice in
the case of all applications for certification by it and, to
the extent it deems appropriate, procedures for public
hearings in connection with specific applications. In
any case where a State or interstate agency has no
44a
authority to give such a certification, such certification
shall be from the Administrator. If the State, interstate
agency, or Administrator, as the case may be, fails or
refuses to act on a request for certification, within a
reasonable period of time (which shall not exceed one
year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit
shall be granted until the certification required by this
section has been obtained or has been waived as provided in the preceding sentence. No license or permit
shall be granted if certification has been denied by the
State, interstate agency, or the Administrator, as the
case may be.
(2) Upon receipt of such application and certification the licensing or permitting agency shall immediately notify the Administrator of such application
and certification. Whenever such a discharge may affect, as determined by the Administrator, the quality of
the waters of any other State, the Administrator
within thirty days of the date of notice of application
for such Federal license or permit shall so notify such
other State, the licensing or permitting agency, and the
applicant. If, within sixty days after receipt of such notification, such other State determines that such discharge will affect the quality of its waters so as to
violate any water quality requirements in such State,
and within such sixty-day period notifies the Administrator and the licensing or permitting agency in writing of its objection to the issuance of such license or
permit and requests a public hearing on such objection,
45a
the licensing or permitting agency shall hold such a
hearing. The Administrator shall at such hearing submit his evaluation and recommendations with respect
to any such objection to the licensing or permitting
agency. Such agency, based upon the recommendations
of such State, the Administrator, and upon any additional evidence, if any, presented to the agency at the
hearing, shall condition such license or permit in such
manner as may be necessary to insure compliance with
applicable water quality requirements. If the imposition of conditions cannot insure such compliance such
agency shall not issue such license or permit.
(3) The certification obtained pursuant to paragraph (1) of this subsection with respect to the construction of any facility shall fulfill the requirements
of this subsection with respect to certification in connection with any other Federal license or permit required for the operation of such facility unless, after
notice to the certifying State, agency, or Administrator,
as the case may be, which shall be given by the Federal
agency to whom application is made for such operating
license or permit, the State, or if appropriate, the interstate agency or the Administrator, notifies such agency
within sixty days after receipt of such notice that there
is no longer reasonable assurance that there will be
compliance with the applicable provisions of sections
1311, 1312, 1313, 1316, and 1317 of this title because
of changes since the construction license or permit certification was issued in (A) the construction or operation of the facility, (B) the characteristics of the waters
into which such discharge is made, (C) the water
46a
quality criteria applicable to such waters or (D) applicable effluent limitations or other requirements. This
paragraph shall be inapplicable in any case where the
applicant for such operating license or permit has
failed to provide the certifying State, or, if appropriate,
the interstate agency or the Administrator, with notice
of any proposed changes in the construction or operation of the facility with respect to which a construction
license or permit has been granted, which changes may
result in violation of section 1311, 1312, 1313, 1316, or
1317 of this title.
(4) Prior to the initial operation of any federally
licensed or permitted facility or activity which may result in any discharge into the navigable waters and
with respect to which a certification has been obtained
pursuant to paragraph (1) of this subsection, which facility or activity is not subject to a Federal operating
license or permit, the licensee or permittee shall provide an opportunity for such certifying State, or, if appropriate, the interstate agency or the Administrator
to review the manner in which the facility or activity
shall be operated or conducted for the purposes of
assuring that applicable effluent limitations or other
limitations or other applicable water quality requirements will not be violated. Upon notification by the certifying State, or if appropriate, the interstate agency
or the Administrator that the operation of any such
federally licensed or permitted facility or activity will
violate applicable effluent limitations or other limitations or other water quality requirements such Federal
agency may, after public hearing, suspend such license
47a
or permit. If such license or permit is suspended, it
shall remain suspended until notification is received
from the certifying State, agency, or Administrator, as
the case may be, that there is reasonable assurance
that such facility or activity will not violate the applicable provisions of section 1311, 1312, 1313, 1316, or
1317 of this title.
(5) Any Federal license or permit with respect to
which a certification has been obtained under paragraph (1) of this subsection may be suspended or revoked by the Federal agency issuing such license or
permit upon the entering of a judgment under this
chapter that such facility or activity has been operated
in violation of the applicable provisions of section 1311,
1312, 1313, 1316, or 1317 of this title.
(6) Except with respect to a permit issued under
section 1342 of this title, in any case where actual construction of a facility has been lawfully commenced
prior to April 3, 1970, no certification shall be required
under this subsection for a license or permit issued after April 3, 1970, to operate such facility, except that
any such license or permit issued without certification
shall terminate April 3, 1973, unless prior to such termination date the person having such license or permit
submits to the Federal agency which issued such license or permit a certification and otherwise meets the
requirements of this section.
48a
(b) Compliance with other provisions of law
setting applicable water quality requirements
Nothing in this section shall be construed to limit
the authority of any department or agency pursuant to
any other provision of law to require compliance with
any applicable water quality requirements. The Administrator shall, upon the request of any Federal department or agency, or State or interstate agency, or
applicant, provide, for the purpose of this section, any
relevant information on applicable effluent limitations, or other limitations, standards, regulations, or
requirements, or water quality criteria, and shall,
when requested by any such department or agency or
State or interstate agency, or applicant, comment on
any methods to comply with such limitations, standards, regulations, requirements, or criteria.
(c) Authority of Secretary of the Army to permit use of spoil disposal areas by Federal
licensees or permittees
In order to implement the provisions of this section, the Secretary of the Army, acting through the
Chief of Engineers, is authorized, if he deems it to be
in the public interest, to permit the use of spoil disposal areas under his jurisdiction by Federal licensees
or permittees, and to make an appropriate charge for
such use. Moneys received from such licensees or permittees shall be deposited in the Treasury as miscellaneous receipts.
49a
(d) Limitations and monitoring requirements
of certification
Any certification provided under this section shall
set forth any effluent limitations and other limitations,
and monitoring requirements necessary to assure that
any applicant for a Federal license or permit will comply with any applicable effluent limitations and other
limitations, under section 1311 or 1312 of this title,
standard of performance under section 1316 of this title, or prohibition, effluent standard, or pretreatment
standard under section 1317 of this title, and with any
other appropriate requirement of State law set forth in
such certification, and shall become a condition on any
Federal license or permit subject to the provisions of
this section.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.