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Source: US State of California Department of Justice

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a coalition of ten attorneys general, filed an amicus brief in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission (FERC) supporting North Carolina’s authority to review and impose conditions on federally-certified projects under Section 401 of the Clean Water Act. North Carolina is currently in the U.S. Court of Appeals for the Fourth Circuit challenging a FERC order, which found that North Carolina waived its Section 401 authority to certify whether a hydroelectric project complied with state law requirements. In the amicus brief, the coalition argues that FERC improperly relied on Hoopa Valley Tribe v. FERC to support the order and urges the Fourth Circuit to vacate and remand FERC’s waiver determination. 

“Once again, the Trump Administration is chipping away at state authority under the Clean Water Act to review federally-approved projects to ensure that they comply with state laws and don’t pollute our waters,” said Attorney General Becerra. “North Carolina has an inherent right to evaluate whether the Bynum Hydroelectric Project complies with state water quality standards and impose additional requirements on the projects to meet those state standards. That’s why I’m joining my colleagues today in urging the Fourth Circuit to affirm decades of commonsense interpretation of the Clean Water Act and vacate FERC’s order.”

The Clean Water Act reflects Congress’ policy to “recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution” of waters within their borders and impose additional protections that go beyond the national floor established by the Act. Under Section 401 of the statute, a project requiring federal approval that may result in discharges into waters of the United States must obtain state certification confirming that the project meets state water quality standards and other appropriate state law requirements. The projects requiring Section 401 certification range from housing and commercial land development to hydropower and pipeline construction. This certification process ensures adequate assessment of the impacts of proposed projects and the imposition of necessary conditions to remedy these impacts.

North Carolina v. FERC involves the Section 401 certification for the Bynum Hydroelectric Project on the Haw River in North Carolina. After the applicant submitted its certification request, North Carolina determined the request was incomplete, and informed the applicant that it would need to withdraw its request to avoid having to pay a new fee. The applicant withdrew and resubmitted its request and, more than one year after the original certification submission, North Carolina issued a Section 401 certification with conditions to protect water quality. That same day, FERC issued an order finding that, under Hoopa Valley Tribe v. FERC, North Carolina had waived its Section 401 authority and approved a 30-year license for the project that did not include the state’s water quality protective conditions. 

In the amicus brief, the multistate coalition urges the U.S. Court of Appeals for the Fourth Circuit to vacate and remand FERC’s order, arguing that:

  • FERC’s waiver determination is contrary to both the plain language and legislative history of Section 401’s waiver provision;
  • FERC’s heavy reliance on the D.C. Circuit’s ruling in Hoopa Valley Tribe v. FERC to conclude that North Carolina waived its Section 401 certification authority is mistaken because the Hoopa Valley decision is flawed; and
  • Hoopa Valley Tribe v. FERC is factually distinguishable from North Carolina v. FERC. 

Attorney General Becerra has been a strong defender of state authority to regulate water quality under the Clean Water Act. On July 21, 2020, Attorney General Becerra, Washington Attorney General Bob Ferguson and New York Attorney General Letitia James, led a coalition of 21 attorneys general in filing a lawsuit challenging EPA’s final rule curtailing state authority under Section 401 of the Clean Water Act. In 2019, the Attorneys General led multistate coalitions in filing comment letters opposing the EPA’s unlawful guidance and proposed rule seeking to curtail state authority Section 401 authority. Attorney General Becerra also filed a lawsuit against the EPA for its determination excluding the Redwood City Salt Ponds from Clean Water Act protections.

Attorney General Becerra joins the attorneys general of Washington, Connecticut, Maine, Michigan, Minnesota, New Jersey, Oregon, Vermont, and Virginia in filing the brief. 

A copy of the amicus brief can be found here.

MIL OSI USA News