A dam

Hydropower Projects

State attor­neys gen­er­al are address­ing ener­gy infra­struc­ture projects and needs in their states and regions, includ­ing advo­cat­ing for the inter­ests of com­mu­ni­ties that would be affect­ed by hydropow­er infra­struc­ture projects. 

Advo­ca­cy in the States

Cal­i­for­nia

In 2006, the orig­i­nal license for a series of hydro­elec­tric dams owned by Paci­fi­Corp along the Kla­math Riv­er in Cal­i­for­nia and Ore­gon expired. Due to their age, the dams were not in com­pli­ance with mod­ern envi­ron­men­tal stan­dards. Paci­fi­Corp pro­posed to reli­cense some of the dams and decom­mis­sion the rest. Four years lat­er, Cal­i­for­nia, Ore­gon, Paci­fi­Corp, Native Amer­i­can tribes and oth­er par­ties reached a set­tle­ment to decom­mis­sion the dams. Since that time, the par­ties have been work­ing to imple­ment a plan to retire and remove the dams.

Under Sec­tion 401 of the Clean Water Act, Paci­fi­Corp is required to obtain water qual­i­ty cer­ti­fi­ca­tions from Ore­gon and Cal­i­for­nia as part of the dam reli­cens­ing process. Sec­tion 401 requires states to act with­in a rea­son­able peri­od of time (which shall not exceed one year)” on water qual­i­ty cer­tifi­cate appli­ca­tions. In this case, how­ev­er, the states and Paci­fi­Corp agreed that the water qual­i­ty cer­ti­fi­ca­tion process should be held in abeyance, pend­ing com­ple­tion of the dam decom­mis­sion­ing process. Sub­se­quent­ly, the util­i­ty and the states annu­al­ly with­drew and resub­mit­ted a request for a water qual­i­ty cer­ti­fi­ca­tion so as to pre­serve the states’ abil­i­ties to act on the requests while decom­mis­sion­ing moved forward.

In 2012, the Hoopa Val­ley Tribe, whose reser­va­tion is down­stream of the dams and is inter­est­ed in expe­dit­ing removal of the dams, peti­tioned FERC for a declara­to­ry order that Cal­i­for­nia and Ore­gon had waived their Sec­tion 401 author­i­ty. In 2014, FERC denied that peti­tion and sub­se­quent­ly denied the tribe’s rehear­ing request lat­er that year. Near the end of 2014, the tribe peti­tioned the D.C. Cir­cuit for review.

2017-2021

  • Jan­u­ary 2019

    In Jan­u­ary 2019, the D.C. Cir­cuit ruled that the states had waived their Sec­tion 401 author­i­ty by agree­ing with Paci­fi­Corp to treat annu­al­ly with­drawn and resub­mit­ted cer­ti­fi­ca­tion requests as new requests. The court held the 2010 agree­ment delib­er­ate­ly and con­trac­tu­al­ly defied Sec­tion 401’s require­ment that a state act with­in one year of the sub­mit­tal of a water qual­i­ty cer­ti­fi­ca­tion request. The court vacat­ed FERC’s order and instruct­ed the com­mis­sion to pro­ceed with its review of the licens­ing deter­mi­na­tion of the dams.

  • March 2019

    In March 2019, Ore­gon Attor­ney Gen­er­al Ellen Rosen­blum led a bipar­ti­san coali­tion of 14 attor­neys gen­er­al in fil­ing an ami­cus brief seek­ing pan­el rehear­ing or rehear­ing en banc. The attor­neys gen­er­al stat­ed that the Jan­u­ary 2019 rul­ing will adverse­ly affect states’ rights to pro­tect water qual­i­ty with­in their bound­aries under the Clean Water Act.

    In their brief, the attor­neys gen­er­al point­ed out that the unam­bigu­ous text of Sec­tion 401 makes clear that a state’s Sec­tion 401 cer­ti­fi­ca­tion author­i­ty is only waived if a state fails to act upon a par­tic­u­lar cer­ti­fi­ca­tion request with­in the time frame for that par­tic­u­lar request. Fur­ther, the statute does not pro­hib­it a licens­ing appli­cant from annu­al­ly with­draw­ing and resub­mit­ting a water cer­ti­fi­ca­tion request as Paci­fi­Corp had done with its Kla­math Riv­er hydro­elec­tric dams. The attor­neys gen­er­al also warned that leav­ing in place the Jan­u­ary 2019 rul­ing would under­mine the abil­i­ty of states to use their Sec­tion 401 author­i­ty to pur­sue and imple­ment com­plex and impor­tant projects, such as the Kla­math project.

  • March 2019

    In March 2019, Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra filed a sup­port­ive ami­cus brief in the lit­i­ga­tion on behalf of the Cal­i­for­nia State Water Resources Con­trol Board, the state agency that exer­cis­es the state’s Sec­tion 401 authority.

  • April 2019

    In April 2019, the D.C. Cir­cuit declined to recon­sid­er the case before either the orig­i­nal pan­el or the full court. In August 2019, non­prof­it orga­ni­za­tions that were involved in the D.C. Cir­cuit lit­i­ga­tion peti­tioned to have to the Supreme Court recon­sid­er the D.C. Circuit’s Jan­u­ary 2019 decision.

  • May 2019

    The fol­low­ing month, Ore­gon Attor­ney Gen­er­al Rosen­blum led a coali­tion of 21 attor­neys gen­er­al in fil­ing an ami­cus brief in sup­port of Supreme Court review of the D.C. Circuit’s deci­sion. The ami­cus brief not­ed that the low­er court’s deci­sion under­mines states’ author­i­ty under the Clean Water Act to reg­u­late water pol­lu­tion and vio­lates the clear lan­guage of sec­tion 401 of the Clean Water Act. Addi­tion­al­ly, the attor­neys gen­er­al warned that under the rul­ing states may be deemed to have unknow­ing­ly waived their author­i­ty to review water qual­i­ty cer­tifi­cate appli­ca­tions, which could result in sig­nif­i­cant harm to water qual­i­ty across the coun­try as major infra­struc­ture projects would not be sub­ject to state water qual­i­ty stan­dards for decades.

  • Decem­ber 2019

    In Decem­ber 2019, the Supreme Court denied the peti­tion for writ of cer­tio­rari, declin­ing to review the D.C. Circuit’s Jan­u­ary 2019 decision.

North Car­oli­na

2017-2010

  • March 2017

    In March 2017, McMa­han Hydro­elec­tric request­ed a Sec­tion 401 water qual­i­ty cer­ti­fi­ca­tion from the North Car­oli­na Depart­ment of Envi­ron­men­tal Qual­i­ty (DEQ) for the Bynum Hydro­elec­tric Project on the Haw Riv­er in North Carolina.

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, McMa­han with­drew and refiled its Sec­tion 401 request with DEQ, an action McMa­han repeat­ed once again in Feb­ru­ary 2019.

  • Sep­tem­ber 2019

    In Sep­tem­ber 2019, FERC, rely­ing on Hoopa Val­ley (above), issued an order grant­i­ng a license to McMa­han Hydro­elec­tric to oper­ate and main­tain the Bynum Hydro­elec­tric Project on the Haw Riv­er in North Car­oli­na. In the Sep­tem­ber 2019 order, FERC deter­mined that the DEQ had waived its author­i­ty to issue a Sec­tion 401 water qual­i­ty cer­ti­fi­ca­tion as twice McMa­han had with­drawn and resub­mit­ted its Sec­tion 401 request at, accord­ing to FERC, the DEQ’s urging.

  • Novem­ber 2019

    DEQ, in Novem­ber 2019, filed a motion for leave to answer and an answer to a third party’s request for rehear­ing from FERC. In April 2020, FERC issued an order deny­ing rehear­ing, find­ing that DEQ had waived its author­i­ty to issue a Sec­tion 401 water qual­i­ty certification.

  • June 2020

    In June 2020, North Car­oli­na Attor­ney Gen­er­al Joshua Stein, act­ing on behalf of DEQ, filed a peti­tion for review chal­leng­ing FERC’s Sep­tem­ber 2019 and April 2020 orders in the Court of Appeals for the Fourth Cir­cuit. The peti­tion for review chal­lenges FERC’s orders as erring in deter­min­ing that DEQ waived its author­i­ty to issue a water qual­i­ty cer­ti­fi­ca­tion for the Bynum Hydro­elec­tric Project.

  • Octo­ber 2020

    In Octo­ber 2020, Wash­ing­ton Attor­ney Gen­er­al Bob Fer­gu­son led a coali­tion of 10 attor­neys gen­er­al in fil­ing an ami­cus brief in sup­port of North Carolina’s and oth­er states’ water qual­i­ty cer­ti­fi­ca­tion author­i­ty under Sec­tion 401 of the Clean Water Act. The brief notes that FERC’s waiv­er find­ing weak­ens states’ abil­i­ty to reg­u­late water qual­i­ty with­in their bor­ders and is con­trary to the plain lan­guage, case law, and leg­isla­tive intent of the Clean Water Act.

    The attor­neys gen­er­al also point­ed out that FERC’s reliance on Hoopa Val­ley was mis­tak­en as it is a flawed deci­sion that is fac­tu­al­ly inap­plic­a­ble out­side of the facts unique to that case. The brief encour­aged the Fourth Cir­cuit to fol­low its own prece­dent that Sec­tion 401 does not require a state to make a cer­ti­fi­ca­tion deci­sion with­in one year of an applicant’s first request if that request is incom­plete or with­drawn. The attor­neys gen­er­al request­ed that the Fourth Cir­cuit vacate FERC’s waiv­er deter­mi­na­tion and remand FERC’s order to incor­po­rate DEQ’s Sec­tion 401 cer­ti­fi­ca­tion for the Bynum Hydro­elec­tric Project.