The U.S. Court of Appeals for the D.C. Circuit should rule that the states of Oregon and California have each waived their water quality certification authority as related to the federal relicensing of the Klamath Hydroelectric Project through their affirmative refusal to act on certification applications submitted by PacifiCorp, said the Hoopa Valley Tribe in a Jan. 8 brief filed with that court.
Under the plain language of Section 401 of the Clean Water Act (CWA), a refusal to act on a certification application results in waiver, the tribe said. It added that the Federal Energy Regulatory Commission (FERC) erred by concluding it is precluded from declaring waiver prior to expiration of one-full year from the date of a certification application. Section 401 provides states a “reasonable period of time” to issue certification, which shall not exceed one year. Section 401 sets an absolute one-year maximum timeframe for certification, but does not require the federal licensing agency to wait a full year prior to declaring waiver based on an announced refusal to act, said the tribe.
The tribe filed this case at the appeals court in December 2014 against FERC.
If a state affirmatively refuses to act on an application, as here, a finding of waiver is mandatory even if less than one year has passed, it added. FERC’s interpretation of Section 401 was erroneous and is not entitled to deference, the tribe said. The states concede they have held the certification proceedings in periods of multi-year abeyance during which they have affirmatively refused to act on the applications, the tribe said.
The tribe said its petition derives from the absolute refusal of the states to exercise their delegated authority. Neither FERC nor the U.S. Environmental Protection Agency endorses the states’ unlawful actions. Policy arguments also weigh in favor of the tribe. “Holding state certification proceedings in multi-year abeyance wrongfully precludes FERC jurisdiction and final issuance of a new license with protective conditions,” the tribe told the appeals court. “States do not need more than one year to evaluate certification applications, because FERC’s re-licensing process builds in years of evaluation prior to filing the application. There is no evidence that delays in certification facilitate settlement. … This Court should rule that the States have waived their certification authority and remand the matter to FERC to conclude the re-licensing.
“PacifiCorp’s brief confirms it is not diligently pursuing re-licensing. Nor is it actively pursuing decommissioning before FERC. The status quo, in which PacifiCorp continues to operate the Klamath Project on an expired license without complying with conditions currently required under federal law is in conflict with the public interest and FERC’s duties under the Federal Power Act (FPA). FERC’s justifications for not acting are arbitrary, capricious, speculative, and not supported by substantial evidence. FERC’s passive stance is an abdication of its authority to regulate hydroelectric development. FERC’s orders should be vacated and this matter remanded with direction to complete the re-licensing, either through license issuance or license denial.”
The tribe later added: “In this case, the States and PacifiCorp negotiated a contract which requires PacifiCorp to engage in withdrawal and re-submittal as a means to avoid FERC jurisdiction and conclusion of the re-licensing – not to gather more information or take actions necessary to the certification decision. The States implemented the agreement by formally placing each of their certification proceedings in multi-year abeyance – committing to take no action on PacifiCorp’s pending and future applications regarding re-licensing. This is a clear refusal to act that mandates a finding that the States have waived their certification authorities here.”
Interested states file brief opposing tribal arguments
Various interested states, including Washington, on Dec. 16 filed with the court a brief supported by several environmental groups that opposes the tribe’s appeal. They said in part: “States have a vital and compelling interest in protecting the water quality of the waters that are located within their boundaries, and ensuring that existing and new hydropower projects are built and operated in a manner consistent with state and federal environmental laws. States implement Section 401 to grant, waive, or deny water quality certification (Section 401 certification) for projects requiring a federal license or permit. By asserting that the States of Oregon and California waived their Section 401 authority merely because PacifiCorp withdrew and resubmitted its Section 401 certification application, the Tribe’s arguments undermine the authority of the states to implement Section 401 in a manner that protects water quality.
“Given the complex nature of major hydropower projects and the level of environmental review associated with such projects, it is sometimes unavoidable for a state to need more than a year to adequately review a project. Such review may include analysis of the project’s impact on water temperature; flow for habitat, aesthetics, and recreation; water chemistry and pH, dissolved oxygen, turbidity, and gas supersaturation; and impacts to existing and designated uses of the water body. Some technical studies may extend beyond a year. Meanwhile, a state may need time to obtain the environmental analysis conducted by FERC as required by the National Environmental Policy Act (NEPA).
“A typical settlement in a FERC hydropower relicensing proceeding is comprehensive in nature, and reflects the varied interests of the stakeholders and the applicant. Due to the complexity of the issues and the diverse (and often competing) interests of those involved, it is not uncommon for such negotiations to exceed a year. The success of these negotiations depends on the applicant being allowed to withdraw and re-submit its Section 401 certification application. Otherwise, the state is forced into a position in which it either has to waive certification (and abdicate responsibility to protect water quality), deny certification of a potentially sound project, or issue a certification with inadequate information. This Court should reject the Tribe’s view that the law forces states, applicants, and stakeholders into a no-win dilemma that defeats the public interests that the CWA seeks to advance.
“The Tribe also fails to explain how its theory would not carry over into other FERC hydropower licensing settlements in which the applicant withdraws and resubmits its Section 401 request. Rather, the Tribe asserts that ‘this Court would be correct to find that withdrawal of a certification application, while maintaining the underlying federal license application in effect, is not ever permissible….’ This extreme assertion by the Tribe is not only legally incorrect; it would put a cloud over past state actions.”
PacifiCorp argues against tribal contentions
Said PacifiCorp in its own Dec. 9 brief in this case: “Just five years ago this Court denied the Hoopa Valley Tribe’s (Hoopa Tribe) attempt to force the Federal Energy Regulatory Commission (FERC) immediately to impose measures allegedly needed for fish protection in annual licenses issued by FERC pending relicensing of PacifiCorp’s Klamath Hydroelectric Project (Project), on the ground that FERC had reasonably concluded based on substantial evidence that no such measures were needed. Now the Hoopa Tribe is back, once again arguing that the Klamath Hydroelectric Settlement Agreement (Settlement) has allowed PacifiCorp to ‘continue to operate under terms of its 1950s-era license without the protective conditions that would be required under current law.’
“The Hoopa Tribe says FERC must either issue a new license now without the States of California and Oregon having issued water quality certifications under section 401 of the Clean Water Act (CWA), or dismiss PacifiCorp’s relicense application for lack of diligent prosecution and order dam decommissioning. As in the previous litigation, however, the Hoopa Tribe fails to cite one fact let alone compelling evidence justifying why FERC must take either of these extraordinary measures.
“The record does not support any such claim. On the contrary, the record demonstrates that PacifiCorp has been funding and implementing a suite of comprehensive environmental improvements to protect water quality and fishery resources consistent with the 2010 dam removal Settlement negotiated with numerous tribes, state and federal resource agencies, environmental organizations, and others. The parties negotiated these measures with the specific intent and understanding that they would be sufficient to mitigate Project impacts until the anticipated 2020 dam removal date.
“Additionally, PacifiCorp has developed Habitat Conservation Plans (HCPs) under section 10 of the Endangered Species Act (ESA), to protect listed aquatic species and is currently implementing the conservation measures included in these HCPs under ESA permits issued by the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS), and together with USFWS, the Services).
“The Hoopa Tribe mistakenly argues PacifiCorp has not been diligent in pursuing relicensing. FERC, however, has concluded that a licensee may seek project decommissioning in lieu of relicensing. FERC has the discretion to defer processing a timely-filed license application while the licensee pursues a decommissioning settlement. Contrary to the Hoopa Tribe’s claims, FERC is not obligated to dismiss the pending license application, because PacifiCorp has been diligently pursuing decommissioning in lieu of relicensing under the terms of the Settlement.
“The Hoopa Tribe claims that certain contingencies for dam removal under the Settlement including federal legislation have not been met and that it is ‘highly speculative’ that the Settlement will be implemented. In fact, it is the Hoopa Tribe who speculates that there is no prospect of Congressional action and that the Settlement is indefinitely stalled. In any event, the Settlement itself provides mechanisms for the parties to amend or reconstitute the Settlement if certain contingencies do not occur on the timeline set forth in the Settlement.”
PacifiCorp’s 169-MW Klamath Hydroelectric Project is located in a predominantly rural area in southwestern Oregon (Klamath County) and northern California (Siskiyou County). The project generates about 716 gigawatt-hours on an annual basis. Built between 1903 and 1962, PacifiCorp’s Klamath Hydroelectric Project consists of seven hydroelectric developments and one non-generating dam.
Noted the PacifiCorp website: “In 2000, the FERC relicensing process was initiated for PacifiCorp’s Klamath River project in southern Oregon and northern California. In February 2010, PacifiCorp and more than 40 other signatories executed the Klamath Hydroelectric Settlement Agreement (KHSA), which provides a framework for the potential removal of PacifiCorp’s Klamath River dams in 2020.”