ELR Citation: 41 ELR 20173
No(s). 10-1066 (D.C. Cir. May 3, 2011)

The D.C. Circuit denied a power company's petition for review of a FERC order that North Carolina did not waive its CWA certification authority necessary for the relicensing of the company's hydroelectric facilities. One of the preconditions of relicensing is receipt of a state certification that any discharges into navigable waters will comply with certain provisions of the CWA. CWA §401(a)(1) provides that state certification shall be waived if the state certifying agency "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request." When a state administrative law judge stayed the water certification issued by the state agency, the company petitioned FERC for a declaratory order that the certifying agency had waived its authority by not issuing a certification that was effective and complete within one year. FERC denied the petition, ruling there was no waiver because the state had acted on the company's application within one year of its filing. The company filed the instant petition for review. But FERC's interpretation of §401(a)(1) to allow licensing once a certification has been obtained, even if the certification is not by its terms immediately effective, is consistent with the plain text and statutory purpose of the provision. Nowhere in §401 is it stated that a certification must be fully effective prior to the one-year period much less prior to licensing; it requires only that a state "act" within one year of an application and that a certification be "obtained."