Commissioner Richard Glick
July 16, 2020
Docket No. CP20-37-000
Order: H-4
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.[1] As today’s order explains, the California Board had pending before it a substantially identical application for more than one year.[2] 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.[3] 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.[4] 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.[5]
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.[6] 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.[7] 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.[8] 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.
For these reasons, I respectfully concur.
[1] 33 U.S.C. § 1341(a)(1) (2018).
[2] See Pac. Gas & Elec. Co., 172 FERC ¶ 61,064, at P 34 (2020) (Order).
[3] 913 F.3d 1099, 1101 (D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v. Hoopa Valley Tribe, 140 S.Ct. 650 (2019).
[4] 168 FERC ¶ 61,185, at PP 33-38 (2019), reh’g denied, 171 FERC ¶ 61,046 (2020).
[5] See Order, 172 FERC ¶ 61,064 at P 34 (quoting McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185 at PP 33-38).
[6] McMahan Hydroelectric, LLC, 171 FERC ¶ 61,046 (Glick, Comm’r, concurring in part and dissenting in part at P 9).
[7] 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)).
[8] 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).