August 2, 2021

Volume XI, Number 214


July 30, 2021

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FERC Adopts Final Rule Formalizing One-Year Deadline for States To Issue Clean Water Act Certifications; Second Circuit Affirms FERC’s Approach

On March 18, 2021, the Federal Energy Regulatory Commission (FERC) adopted a Final Rule requiring state agencies to issue Clean Water Act (CWA) Section 401 water quality certificates within one year of receiving a request or else waive the right to issue a certification. The rule formalizes the firm one-year limit on the amount of time a state may take to consider a request under Section 401, and clarifies that the time period begins upon receipt of a request, thereby reducing confusion.

Days later, on March 23, 2021, the U.S. Court of Appeals for the Second Circuit in New York State Department of Environmental Conservation v. FERC (2nd Cir. Docket No. 19-1601-ag) affirmed FERC’s strict approach to the one-year deadline. That case affirmed FERC orders, issued in 2017 and 2018, concluding that New York waived its Section 401 rights because it had not acted within one year of receiving a natural gas pipeline’s application for certification, despite the fact that the Department of Environmental Conservation and the pipeline project sponsor had agreed to a stipulation extending the one-year deadline by 36 days. Although the Second Circuit’s decision does not directly address FERC’s new rule, it provides strong support for the strict approach taken in the final rule.

As we reported in greater detail when FERC proposed the rule late last year, the Final Rule is significant because it sets specific limits on how states may exercise their power under Section 401(a) of the CWA. Section 401(a) requires an applicant for any federal license or permit that may result in a discharge of any pollutant into navigable waters to obtain a certification from the affected states that the project will meet all applicable Clean Water Act requirements. The rule is important for a variety of FERC permits or licenses—for example, licenses to operate a hydroelectric project or permits to construct a natural gas pipeline—because it places a clear time limit on the state’s ability to act, and therefore reduces the possibility of unnecessary and costly delays in project approvals.

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 83

About this Author

Eric Christensen Energy & Natural Resources Attorney
Of Counsel

Eric is a leading energy and natural resources attorney in the Pacific Northwest.

He assists renewable and traditional energy companies, as well as major energy consumers, to navigate the complex legal and regulatory systems governing the nation’s energy industry. With more than 30 years of experience, Eric has successfully represented clients in litigation and regulatory matters, ranging from the U.S. Supreme Court to proceedings before federal and state agencies. Before entering private practice, Eric served as Assistant General Counsel at Snohomish County (WA)...

W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

Katrina Krebs Environmental Litigation Attorney Beveridge & Diamond New York, NY

A careful listener and creative problem solver, Katrina identifies client needs to effectively advocate for their position.

Katrina brings a life-long interest in the natural environment to her law practice, which is focused on addressing National Environmental Policy Act (NEPA) issues, wetlands regulation, federal species protection laws, land use law, and litigation.

Prior to law school, Katrina worked for the U.S. Fish & Wildlife Service on national wildlife refuges in Arizona, Colorado, and Wyoming. As a Park Ranger, she educated visitors and...

Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...