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.