Blog: Court ruling finds FERC 401 waiver not justified – important implications for California hydropower project licenses
On July 2, 2021, the Fourth Circuit U.S. Court of Appeals issued an important decision regarding Section 401 of the Clean Water Act, overturning an Order by the Federal Energy Regulatory Commission (FERC). FERC’s Order had found that the state of North Carolina had unlawfully “coordinated” with the license applicant to delay the state’s certification that a new FERC license for the Bynum hydroelectric project complied with state water quality laws. FERC found that North Carolina’s participation in the delay meant that the state had “waived” its authority under Section 401 to issue the certification.