Commissioner Richard Glick Statement
September 19, 2019
Docket Nos. P-14858-000
I concur in part and dissent in part from today’s order. Although I agree that the North Carolina Department of Environmental Quality (North Carolina DEQ) waived its authority under section 401 of the Clean Water Act,1
I disagree with important of aspects of how the Commission reached that conclusion. Specifically, I disagree with the Commission’s suggestion that additional information submitted by an applicant is irrelevant when determining whether a state waived its section 401 authority. But we need not conclusively resolve this issue because the record indicates that the applicant withdrew and resubmitted its section 401 application at the state’s direction for the purposes of avoiding waiver and without any substantial intervening modification. That is sufficient to find that the state waived its section 401 authority.
Section 401 of the Clean Water Act requires applicants for federal license that “may result in any discharge into the navigable waters”—a category that includes hydroelectric licenses issued by the Commission—to secure a certificate from the state in which the “discharge originates or will originate.”2
The Clean Water Act, however, imposes a time limit on states’ review of a section 401 application: “If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.”3
In Hoopa Valley Tribe v. FERC, the U.S. Court of Appeals for the District of Columbia Circuit held that “a state waives its Section 401 authority when, pursuant to an agreement between the state and applicant, an applicant repeatedly withdraws-and-resubmits its request for water quality certification over a period of time greater than one year.” 4
The court reasoned that because the same request had been pending for more than a year, it exceeded the maximum period of review allowed under the provision of section 401 quoted above.5
The court, however, did not address the situation in which the applicant withdraws and resubmits a modified application, rather than submitting the same application for over a decade, as the applicant did in Hoopa Valley.6
Indeed, the court explicitly did not discuss the situation in which an applicant “withdrew its request and submitted a wholly new one in its place” or the issue of how “how different a request must be to constitute a ‘new request’ such that it restarts the one-year clock.”7
Nothing in Hoopa Valley’s reasoning requires the Commission to determine that a state waives its water quality certification authority when the applicant withdraws and resubmits an application that has been significantly modified since the previous submission. Nevertheless, today’s order appears to suggest that additional information submitted to the state after the initial application is irrelevant to determining whether the state waived its authority, unless it reflects a major physical modification of the project. I disagree. I believe that it is possible that a significant modification to a pending section 401 application may justify withdrawing and resubmitting that application without running afoul of section 401’s time limitation. The Commission disagrees, noting that a state asks for information all the time, sometimes relating to significant matters.8
It is true that considering whether a significant supplemental submission restarts the one-year clock might make it more difficult for the Commission to find that a state has waived its section 401 authority. But that is not, in my opinion, a persuasive reason to ignore the effects that such submissions might have on the one-year clock.
But we do not need to answer that question in order to resolve this proceeding. The record indicates that, on February 11, 2019, at the direction of North Carolina DEQ, McMahan Hydroelectric LLC (McMahan) withdrew and resubmitted the section 401 application that it filed on February 20, 2018. The record further indicates that McMahan did not significantly modify or supplement that application between February 20, 2018, and when it was resubmitted on February 11, 2019. As of the date of this order, North Carolina DEQ has not acted on McMahan’s application. That is sufficient for us to conclude that North Carolina waived its section 401 authority.
For these reasons, I respectfully concur in part and dissent in part.
- 11 33 U.S.C. § 1341(a)(1) (2018).
- 22 Id.
- 33 Id.
- 44 913 F.3d 1099, 1103 (D.C. Cir. 2019).
- 55 Id. at 1105.
- 66 Id. at 1104.
- 77 Id.; see also id. at 1105 (“[T]he record indicates that [the applicant’s] water quality certification request has been complete and ready for review for more than a decade.”).
- 88 McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185, at n.43 (2019). View Printable PDF Version