ELR Citation: 53 ELR 20001
No(s). 21-1139 (D.C. Cir. Dec 20, 2022)

The D.C. Circuit vacated a license issued by FERC for operation of a hydroelectric dam on the Susquehanna River in Maryland. The state of Maryland issued a CWA §401(a)(1) certification to the dam's operator in 2018 with conditions. The operator challenged the certification, and the parties reached a settlement under which Maryland agreed to conditionally waive its rights to issue a certification upon FERC's incorporation of the settlement's proposed license articles. FERC subsequently issued a 50-year license. Environmental groups petitioned for review, arguing that CWA §401(a)(1) did not permit Maryland to retroactively waive its 2018 certification and that FERC exceeded its authority by issuing a license that failed to incorporate the conditions. The court held FERC can only issue a license under the CWA when a state has granted a certification or when the state has waived its authority to certify by failing or refusing to act, and thus that it exceeded its authority in issuing a license based on a private settlement arrangement entered into by Maryland after the state had issued a conditional certification but changed its mind. The court vacated the license and remanded for further proceedings.