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Tribe v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

January 25, 2019

Hoopa Valley Tribe, Petitioner
v.
Federal Energy Regulatory Commission, Respondent American Rivers, et al., Intervenors

          Argued October 1, 2018

          On Petition for Review of Orders of the Federal Energy Regulatory Commission

          Thane D. Somerville argued the cause for petitioner. With him on the briefs was Thomas P. Schlosser.

          Carol J. Banta, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. On the brief were James P. Danly, General Counsel, Robert H. Solomon, Solicitor, Robert M. Kennedy, Senior Attorney, and Ross R. Fulton, Attorney.

          Richard Roos-Collins, Julie Gantenbein, Stuart Somach, Michael A. Swiger, and Sharon L. White were on the briefs for intervenors American Rivers, et al. in support of respondent.

          Michael A. Swiger and Sharon L. White were on the brief for intervenor Pacificorp in support of respondent. Charles R. Sensiba entered an appearance.

          George J. Mannina Jr. was on the brief for intervenor-respondent Siskiyou County, California. Ashley Remillard and Paul S. Weiland entered appearances.

          Robert W. Ferguson, Attorney General, Sonia A. Wolfman, Assistant Attorney General, Office of the Attorney General for the State of Washington, Lawrence G. Wasden, Attorney General, Office of the Attorney General for the State of Idaho, Joseph A. Foster, Attorney General, Office of the Attorney General for the State of New Hampshire, Douglas S. Chin, Attorney General, Office of the Attorney General for the State of Hawaii, Janet T. Mills, Attorney General, Office of the Attorney General for the State of Maine, Peter K. Michael, Attorney General, Office of the Attorney General for the State of Wyoming, Eric T. Schneiderman, Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, and Sean D. Reyes, Attorney General, Office of the Attorney General for the State of Utah, were on the brief for amici curiae States of Washington, et al. in support of intervenors-respondents American Rivers, et al.

          Kamala D. Harris, Attorney General at the time the brief was filed, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, Eric M. Katz, Supervising Deputy Attorney General, and Ross H. Hirsch and Adam L. Levitan, Deputy Attorneys

         General, were on the brief for amicus curiae California State Water Resources Control Board in support of respondent.

          Ellen F. Rosenblum, Attorney General, and Paul Garrahan, Attorney-In-Charge, Office of the Attorney General for the State of Oregon, were on the brief for amicus curiae The State of Oregon in support of respondent.

          Before: Griffith and Pillard, Circuit Judges, and Sentelle, Senior Circuit Judge.

          OPINION

          Sentelle, Senior Circuit Judge

         Hoopa Valley Tribe ("Hoopa") petitions for review of Federal Energy Regulatory Commission ("FERC") orders, which found (1) that California and Oregon had not waived their water quality certification authority under Section 401 of the Clean Water Act ("CWA") and (2) that PacifiCorp had diligently prosecuted its relicensing application for the Klamath Hydroelectric Project ("Project"). Whereas statutory waiver is mandated after a request has been pending for more than one year, the issue in this case is whether states waive Section 401 authority by deferring review and agreeing with a licensee to treat repeatedly withdrawn and resubmitted water quality certification requests as new requests. We conclude that the ...


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