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Golden Gate University Environmental Law Journal

Abstract

Pursuant to Clean Water Act section 401, state water quality certification authority to regulate federally-licensed energy projects has been relatively well settled for decades. Long-standing precedents from the U.S. Supreme Court, other federal courts, the U.S. Environmental Protection Agency (“U.S. EPA”), and implementation of certification authority by the states, have repeatedly reinforced the cooperative federalism principle of the Clean Water Act: state section 401 certification authority is essential to preserve the states’ ability to address a wide range of pollution problems caused by federally-permitted energy facilities. In recent years, however, state section 401 certification authority has come under siege in the courts, by the Federal Energy Regulatory Commission (“FERC”), and through federal rule changes.

This Article examines the interrelationship of the Federal Power Act and the Clean Water Act with respect to states’ duties to protect water quality. It then explores how section 401 is being redefined by the Hoopa Valley decision and U.S. EPA’s Certification Rule, and discusses the State of California’s response to those recent events. Ultimately, it remains to be seen whether the numerous legal challenges currently underway to test the legality of the federal agency actions will succeed in re-aligning the states’ ability to regulate water quality within their borders.

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