On Friday, a court ruling provided some clarity regarding the Clean Water Act (CWA) § 401 water quality certification process. As forecasted in our November 1, 2018 blog post (below), the US Court of Appeals for the DC Circuit has ruled that a state waives its CWA § 401 authority when, pursuant to a written agreement, an applicant repeatedly withdraws and resubmits its request for water quality certification in order to restart the one-year waiver clock. Hoopa Valley Tribe v. FERC, No. 14-1271 (D.C. Cir. Jan. 25, 2019). According to the Court’s opinion, this sort of arrangement serves to circumvent the Federal Energy Regulatory Commission’s (FERC) “congressionally granted authority over the licensing, conditioning, and developing of [the] project,” and “if allowed, the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.”

The Court’s strict adherence to the one-year deadline has significant implications for both the hydroelectric and interstate natural gas pipeline industries. For example, over 15 other hydroelectric projects have been delayed by pending water quality certifications, with an average delay over seven years. This decision could provide the impetus to resolve such delays. Furthermore, the Court addresses one of the key issues that arises in disputes over the development of interstate natural gas pipelines. Ambiguity over when the statutory one-year deadline begins and ends, and whether withdrawal and resubmission of a request restarts the clock, has caused substantial delays. [1] Such delays have produced significant capacity constraints across the northeast, causing natural gas prices to skyrocket during cold spells.[2] For example, on January 18, 2019, a large utility announced a moratorium on new natural gas connections in parts of Westchester County, NY.[3] The Hoopa Valley decision, however, makes clear for the first time that a scheme to withdraw and resubmit the same request over an extended period of time constitutes waiver. Moreover, the court clarifies that “while a full year is the absolute maximum, it does not preclude a finding of waiver prior to the passage of a full year.”

Such statements suggest a potential reversal in the ongoing controversy over the New York Department of Environmental Conservation’s (NYDEC) April 2016 denial of water quality certification for the Constitution Pipeline. After unsuccessful challenges in various venues, Constitution petitioned the DC Circuit for review of FERC’s finding that NYDEC did not waive its CWA § 401 authority. In November 2018, in response to FERC’s motion, the DC Circuit agreed to hold the Constitution case in abeyance until it reached a decision in Hoopa Valley “because it raises common questions of law.” While the facts between the two cases are somewhat different—in Hoopa Valley the certification was delayed by more than a decade subject to a written agreement to withdraw and resubmit the same request year after year, whereas Constitution agreed to withdraw and resubmit its request twice, between August 2013 and April 2016, to provide NYDEC with additional time to reach a final determination—by granting FERC’s request to hold the case in abeyance, the DC Circuit, at a minimum, recognized the legal similarity between the two cases. If the Court determines that the same legal rationale should apply to Constitution’s facts, then we are likely to see a similar outcome and a finding that NYDEC waived its authority.


[1] During Oral Argument, D.C. Circuit Suggests Waiver Period for State Water Quality Certification May Be Less Than One Year

[2] See Benjamin Storrow, Cold snap reignites debate over future of New England grid, E&E News (Jan. 11, 2018) (In January 2018, during a cold snap, “New England’s spot [natural gas] prices registered as the most expensive in the world [prompting] power plant owners to idle their natural-gas fired workhorses… in favor of their seldom-used oil units.”). These high prices were primarily caused by insufficient natural gas pipeline and storage capacity. In response to natural gas constraints in New England, states were forced to purchase imported liquefied natural gas (LNG) from Russia. See Anna Mikulska, Delivery Of Russian LNG Heats Up Discussion About U.S. Energy Dominance And Sanctions, Forbes.com (Feb. 6, 2018).

[3] Statement from Con Edison Re: Moratorium on New Gas Connections in Westchester (Jan. 18, 2019).