H. Water Quality Certification Under CWA section 401(a)

Under Clean Water Act (CWA) Section 401, FERC may license a hydropower project only if the State where the project discharges certifies that the project will comply with applicable water quality standards.[1]  FERC must include in the license any conditions the State requires in order to certify the project.

The State where the project is located must assure compliance with the Clean Water Act water quality standards before issuing a water quality certification.  Each state’s water quality standards are made up of beneficial uses, narrative and numeric criteria, and the anti-degradation policy.[2]   If the State finds that a project would violate water quality standards and cannot be reasonably expected to meet water quality standards through remedial actions, the state must deny certification, and FERC must also deny the license.[3]  A state, however, can include limitations on discharge of pollutants (such as construction debris or erosion) and “any other appropriate requirement of State law” to assure compliance with water quality standards.[4]

Depending on water quality standards in individual states, the water quality certification can establish a variety of different types of conditions.  For example, a certification may establish a minimum flow schedule or flow storage[5] or require fish passage or creation of a recreational facility for enhanced access.[6]  A certification may also reserve the State’s authority to reopen the certification if the State determines any such condition to be necessary for compliance.  A certification can also be issued with an adaptive management plan to meet water quality targets in the future.  As with Section 4(e) or 18 conditions, FERC may not amend or delete a certification condition.  A licensee (or other participant) may challenge an objectionable certification only in State court.[7]

Water quality certification may provide the greatest leverage for environmental restoration at a typical hydropower project.  Early in the licensing proceeding, familiarize yourself with your State’s water quality standards and its own administrative procedures for issuing water quality certification.  To learn more about Section 401 of the Clean Water Act and water quality standards, go to EPA’s website at www.epa.gov/waterscience/standards, www.instreamflowcouncil.org and www.rivernetwork.org.

Make a written request that the State agency put you on its mailing list for the certification proceeding and include you in any negotiations the agency undertakes with the applicant.  Send a copy of your request to FERC for inclusion in the record. 

Encourage the State to adopt written findings as the basis for its certification and to describe the expected impacts on water quality.  (Many states do not.)  Such findings serve as the basis for accountability that the certification actually complies with such standards over the term of the license.

Encourage the State, in its certification decision, to address project operation and all other project impacts on water quality, not just the discharge of waste.   It may be useful to coordinate with organizations that have experience dealing with the state about administration of water quality standards.  For larger, more controversial projects, it may be helpful to involve the governor’s office or members of the state legislature. 

Any administrative rehearing of the certification occurs before the State, not FERC.  Any judicial appeal lies to State court, not the U.S. Court of Appeals that has jurisdiction to hear an appeal of the license itself.  You should be prepared to use these procedures if a certification, in your judgment, fails to attain water quality standards as required by CWA and the counterpart state law.

[1]               33 U.S.C. § 1341(a)(1).

[2]               See www.epa.gov/waterscience/standards/handbook for examples of such standards.

[3]               33 U.S.C. § 1341(a)(1); 33 U.S.C. § 1341(a)(3).

[4]               33 U.S.C. § 1341(d).

[5]               See PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 723 (1994).

[6]               See American Rivers I, 129 F.3d 99, 105.

[7]               See id. at 102.