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Democratic AGs File Amicus Brief in Support of North Carolina’s Clean Water Act Certification Authority

  • Ten Democratic AGs, led by Washington AG Bob Ferguson, filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in North Carolina Department of Environmental Quality v. Federal Energy Regulatory Commission (FERC), Nos. 20-1655 (L), 20-1671, in support of North Carolina’s position that the district court erred in upholding a FERC order finding that the state had waived its authority under section 401 of the Clean Water Act (“CWA”) to certify that a hydroelectric project meets state water quality standards and other state requirements.
  • The challenged FERC order found that North Carolina waived its CWA authority when it issued its certification after the statute’s one-year deadline. North Carolina argues that the applicant withdrew and resubmitted its request to avoid a finding that the request was incomplete and to allow the application to be completed within the time restriction, which does not result in a CWA waiver.
  • The brief argues that the CWA provides a mechanism for states to protect their water quality by requiring projects to receive Section 401 certification from states into which discharges may flow, that FERC’s waiver determination was contrary to the plain language and the legislative history of the CWA’s waiver provision, and that the case on which FERC relied in its waiver determination is distinguishable from the circumstances in North Carolina’s case.