Ten AGs Filed Amicus Brief in Support of North Carolina State Agency’s Clean Water Act Section 401 Authority

OCTOBER 2, 2020

Washington Attorney General Bob Ferguson led a coalition of 10 attorneys general in filing an amicus brief in litigation in the U.S. Court of Appeals for the Fourth Circuit over the Federal Energy Regulatory Commission’s (FERC) finding that the North Carolina Department of Environmental Quality waived its Section 401 authority with respect to a proposed hydroelectric project on the Haw River in central North Carolina. The amicus brief emphasized that FERC’s “erroneous” finding effectively ignored evidence showing that the applicant’s withdrawal and resubmission of its application for certification included additional information beyond its original application. The statutory language of the Clean Water Act, its legislative history and relevant case law “make plain that Section 401 neither bars an applicant from voluntarily withdrawing and resubmitting a request for Section 401 certification nor justifies a waiver determination when that practice occurs.” In their amicus brief, the attorneys general emphasized that “[t]he primacy of states’ regulatory authority over their waterways is evident in Section 401 of the Clean Water Act,” and that “Congress never intended to impede a project proponent’s ability to voluntarily withdraw its application.”