Ninth Circuit Finds no Waiver of California’s Water Board’s Section 401 Certification Authority–The Latest in the Battle of Authority to Regulate Federal Hydropower Projects

November 2022

Western Water Law & Policy Reporter, Volume 27, Number 1

In passing the federal Clean Water Act in 1972m Congress contemplated a system of cooperative federalism, whereby states would be essential partners in protecting water quality. Toward that end, federal licenses for activities resulting in discharges into navigable waters require a water quality certification from the affected state, including licenses from the Federal Energy Regulatory Commission (FERC) to operate hydropower projects. The inconsistent priorities of state governments, the federal government, project proponents, and other stake-holders guarantees tension in this process. In the hydropower licensing context, tension over the application of the one-year deadline for states to make a decision on a water quality certification has boiled over into litigation and a string of federal appellate cases throughout the United States.

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