Commissioner Richard Glick
July 16, 2020
Docket No. CP20-37-000
I concur in the determination that the California State Water Resources Control Board (California Board) waived its authority under section 401 of the Clean Water Act. As today’s order explains, the California Board had pending before it a substantially identical application for more than one year. That is sufficient to find waiver pursuant to the U.S. Court of Appeals for the District of Columbia Circuit’s decision in Hoopa Valley Tribe v. FERC. Accordingly, we need not consider how significantly an application must change for it to constitute a new application for the purposes of section 401.
I write separately, however, to reiterate my continuing disagreement with the Commission’s position articulated in McMahan Hydroelectric, LLC and referenced in today’s order. In that proceeding, the Commission stated that, absent some as yet still undefined “unusual circumstances,” additional information regarding a project that does “not rise to the level of a material change to a project’s plan of development, such that an application to amend a pending license application [before this Commission] . . . would be warranted,” cannot give rise to a new application under Hoopa Valley.
As I have previously explained, nothing in the Clean Water Act or Hoopa Valley requires us to so drastically limit what might constitute a ‘new’ application for the purposes of section 401. Instead, Congress enacted section 401 so that states can ensure that a federally licensed or certificated project does not violate state or federal water quality standards and to permit states to impose such conditions as are necessary to ensure that result. The submission of additional information could well determine whether a state can make the water quality findings required by section 401, even if those changes do not require a new license application with this Commission. Taking the position that only a revised application to this Commission could result in a new section 401 application discounts the complex and nuanced review that many states undertake in implementing their section 401 authority.
 33 U.S.C. § 1341(a)(1) (2018).
 See Pac. Gas & Elec. Co., 172 FERC ¶ 61,064, at P 34 (2020) (Order).
 913 F.3d 1099, 1101 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley Tribe, 140 S.Ct. 650 (2019).
 168 FERC ¶ 61,185, at PP 33-38 (2019), reh’g denied, 171 FERC ¶ 61,046 (2020).
 See Order, 172 FERC ¶ 61,064 at P 34 (quoting McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185 at PP 33-38).
 McMahan Hydroelectric, LLC, 171 FERC ¶ 61,046 (Glick, Comm’r, concurring in part and dissenting in part at P 9).
 Id. (Glick, Comm’r, concurring in part and dissenting in part at P 9) (citing PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700, 707-08 (1994) and S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 386 (2006)).
 Id. (Glick, Comm’r, concurring in part and dissenting in part at P 9) (citing PUD No. 1 of Jefferson Cty, 511 U.S. at 707).