On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019), allowing the lower court’s ruling to stand.  The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (“FERC”) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.

The disposition of the case means that the D.C. Circuit’s holding is now final and unappealable.  The ruling provides clarity and some certainty to states, federal regulators, and federal license and permitting applicants with regard to the time period for states to act on requests for water quality certification.  Since the D.C. Circuit’s ruling in January 2019, FERC has applied Hoopa Valley Tribe numerous times in both the natural gas and hydropower contexts—each time determining that the state had waived certification in the pending FERC process.  See Placer Cty. Water Agency, 167 FERC ¶ 61,056 (2019), reh’g denied, 169 FERC ¶ 61,046 (2019); Empire Pipeline, Inc., 164 FERC ¶ 61,084 (2018), reh’g denied, 167 FERC ¶ 61,007 (2019); Constitution Pipeline Co., LLC, 168 FERC ¶ 61,129 (2019).

The Supreme Court’s denial of certiorari can be found here.

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Photo of Misha Tseytlin Misha Tseytlin

Misha is a leading appellate attorney with an accomplished track record before the U.S. Supreme Court, federal courts of appeal, and state courts. He is a nationally recognized authority on administrative law and political law issues.

Photo of Morgan Gerard Morgan Gerard

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and…

Morgan’s practice focuses on advising public and private sector clients on environmental and energy regulatory compliance, including permitting, rulemaking, and enforcement actions. She has focused on following the emerging energy trends and the associated environmental issues that arise in strengthening grid resilience and modernizing the energy system. Morgan has counseled clients ranging from those engaging in the hydropower licensing and relicensing process to electric utilities, wholesale generators, and distributed energy manufacturers, including electric vehicle manufacturers, solar installers and energy storage providers. She also counsels clients on matters arising under the National Environmental Policy Act, the Federal Power Act, the Clean Air Act, the Clean Water Act, the Coastal Zone Management Act, the Endangered Species Act, and similar state and local regulatory schemes.

Photo of Kevin LeRoy Kevin LeRoy

Kevin is an associate in the firm’s Business Litigation practice. Prior to joining the firm, Kevin was a deputy solicitor general with the Wisconsin Office of the Solicitor General. While there, he routinely drafted briefs on behalf of Wisconsin in high-profile appeals before…

Kevin is an associate in the firm’s Business Litigation practice. Prior to joining the firm, Kevin was a deputy solicitor general with the Wisconsin Office of the Solicitor General. While there, he routinely drafted briefs on behalf of Wisconsin in high-profile appeals before the U.S. Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, and the Wisconsin Supreme Court. He also regularly argued before the Seventh Circuit and the Wisconsin Supreme Court.