• In May 2024, the Federal Energy Regulatory Commission (“FERC”) adopted the Environmental Protection Agency’s (“EPA”) revised section 401 requirements under the Clean Water Act.
• As with the EPA’s requirements, FERC’s new policy requires that states process water quality certification applications within a reasonable time, ideally within six months but not exceeding one year from the applicant’s request.
• This new policy affects California’s permitting role in projects involving FERC licensing, like hydroelectric dam projects.

Section 401 of the Clean Water Act grants states and authorized tribes authority to review and impose conditions on federally-permitted or -licensed projects discharging into navigable waters comply with state water quality standards. This certification is a prerequisite for obtaining federal licenses or permits for projects involving such discharges. The Clean Water Act requires that states and tribes process all water quality certification requests within one year of the filing date. During that time, the reviewing agency either accepts, denies, or waives the certification request. A state’s or tribe’s waiver can be implied by not acting within the required time. Whether and when states waive their certification authority has undergone increased scrutiny recently, resulting in new case law and triggering new rules from the EPA and, now, FERC for when and how states and tribes must process water quality certification applications.

By adopting the EPA’s requirements, FERC’s rule aims to clarify the certification process. The rule provides a timeline for review, identifies the scope of states’ 401 authority, and promotes communication between the certifying entity and the applicant. The rule provides:

• Prompt Review: While the Clean Water Act allows them one year to accept, deny, or waive a certification request, FERC’s rule encourages states and tribes to accept, deny, or waive the request within six months.
• Certifying Agency Authority: The states’ or tribes’ review is limited to water quality impacts from discharges originating in their jurisdiction.

FERC’s rule also streamlines the review process by encouraging states or tribes to reach an agreed-upon time with the applicant for their review of an application. If the parties cannot agree, then the rule sets a six-month default reasonable time period. This process is done on a case-by-case basis. In any event, the Clean Water Act requires that the state or tribe has up to one year to process the application.

By adopting the EPA’s requirements, FERC’s rule encourages a more predictable and transparent certification process. That rule aims to reduce previously faced permitting delays and helps clarify what conditions states or tribes may impose for proponents of project like hydroelectric dams. If you have any questions regarding FERC’s or EPA’s section 401 policies, or how those policies affect you, please contact our Environmental and Water Law attorneys.

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Myles Le Blanc, of Hanson Bridgett's 2024 2L Summer Associate program, contributed to this article.