ELR Citation: ELR 20001
No(s). 051871 (1st Cir. Dec 23, 2008)

The First Circuit upheld a Federal Energy Regulatory Commission (FERC) order staying its issuance of an operating license to a hydroelectric facility in Maine. FERC stayed the license because the state environmental agency withdrew its Clean Water Act (CWA) §401 certification that the project complied with various state and federal water quality standards. The facility argued that the state's rescission of certification violated the CWA's one-year time limit and is a nullity, resulting in either a waiver of certification or reinstatement of the agency's certification. Yet, the very same rescission issue was fully litigated in state court, which considered and rejected on the merits the facility's claim that §401 barred the agency's action. The facility also argued that however §401 may be read, FERC cannot by its stay order undo a license already granted. But FERC has not modified the license but simply stayed its order granting the license pending reconsideration. Its authority to revisit the grant of a license in response to a timely petition for reconsideration can hardly be open to question. Whether FERC could "stay" a license after the period for reconsideration had lapsed is an issue not presented here.