ELR Citation: 52 ELR 20093
No(s). 20-72432, 20-72452, 20-72782, 20-72800, 20-72958, and 20-72973 (9th Cir. Aug 4, 2022)

The Ninth Circuit vacated FERC orders that held the California Water Resources Control Board had waived its authority to ensure certain hydroelectric projects complied with state water quality standards. The Board and environmental groups petitioned the court to review FERC's findings that the Board had engaged in coordinated schemes with state water officials to delay CWA §401 certification and avoid making a decision on their certification requests. According to FERC, the Board had coordinated with the officials to ensure they withdrew and resubmitted their requests before the state's deadline to act under §401 to reset its one-year review period. The court found FERC's findings were not supported by substantial evidence; rather, the evidence showed only that the Board acceded to the officials' own decisions to withdraw and resubmit their applications rather than have them denied. Under FERC's own coordination standard, a state's mere acceptance of a withdrawal and resubmission is not enough to show that the state engaged in a coordinated scheme to avoid its statutory deadline for action. The court vacated the orders and remanded for further proceedings.