North Carolina AG Filed Petition for Review of FERC Order that Denied Section 401 Rights

JUNE 12, 2020

North Carolina Attorney General Josh Stein filed a petition for the Fourth Circuit to review an order by the Federal Energy Regulatory Commission (FERC) that determined that the North Carolina Department of Environmental Quality (NCDEQ) had waived its rights under Section 401 of the Clean Water Act to issue a water quality certification for the Bynum Hydroelectric Project. NCDEQ’s certification process was delayed when McMahan Hydro, the company operating and seeking a license for the project, withdrew and resubmitted its water quality certification application. FERC alleged that the company’s resubmission of the application did not extend the certification waiver period, and thus, NCDEQ had “failed to act on [the] request for water quality certification within a reasonable period of time, not to exceed one year of receiving [the] application.” AG Stein’s petition for review argued that FERC erred in making this determination.