On March 15, 2018, FERC denied the West Virginia Department of Environmental Protection’s (“West Virginia DEP”) and the West Virginia Division of Natural Resources’ (collectively, “West Virginia”) request for rehearing of FERC’s issuance of original licenses for two hydroelectric projects to be constructed, owned, and operated by FFP Missouri 15, LLC and FFP Missouri 16, LLC (collectively, “FFP”).  Specifically, FERC found that West Virginia waived its certification authority under section 401 of the Clean Water Act (“CWA”) by failing to act on the application within one year of receipt.

On February 27, 2014, FFP filed license applications for their Morgantown and Opekiksa Projects.  While the Commission was reviewing the application, FFP submitted applications for CWA section 401 water quality certifications for each project from the West Virginia DEP.  The West Virginia DEP received the applications on February 12, 2016 and issued section 401 water quality certifications on March 8, 2017.  In licensing the Morgantown and Opekiska projects, Commission staff determined that by failing to act on FFP’s applications within one year of receipt, West Virginia waived its section 401 authority to issue the certifications.  As a result, the Commission did not include the West Virginia DEP’s water quality condition in either license issued by FERC for the projects.

On October 27, 2017, in response to the Commission staff’s determination, West Virginia; the City of Morgantown, West Virginia; and the Monongahela River Trails Conservancy requested rehearing.  West Virginia argued that as the state, it has authority to administer section 401 of the CWA in West Virginia.  Under section 401 of the CWA, if a state does not act on a request for a water quality certification within a reasonable period of time (not to exceed one year) after receipt of such request, the water quality certification requirements of section 401 are waived.  However, West Virginia argued that the State of West Virginia’s regulations, not FERC’s hydropower regulations, determine when the one-year waiver period occurs.  According to West Virginia, the West Virginia DEP determined on March 9, 2016 that FFP’s application was complete and therefore had until March 9, 2017 to act on the application.

In denying the requests for rehearing, FERC interpreted the plain language of CWA section 401 and the Commission’s hydropower regulations as requiring state agency action on an application within one year of receipt of the application.  This decision reaffirmed its finding in a similar case involving the New York Department of Environmental Conversation (see March 20, 2018 version of the WER).  Additionally, FERC stated that under the Federal Power Act, the Commission alone may determine whether or not to adopt state recommendations (even if the state failed to act within the required timeline).  Here, Commission staff considered the conditions provided by the West Virginia DEP in water quality certification and decided not to include them.  In particular, FERC found that the projects did not threaten the protection of fishing or recreational opportunities.  Therefore, the Commission denied the rehearing requests and upheld its decision to not include the water quality certification conditions in licensing the Morgantown and Opekiksa Projects.

A copy of the FERC’s order is available here.