WASHINGTON -- American Rivers applauded a decision issued by an Appellate Court that will preserve states' rights in protecting their water quality. Handed down by the Second Federal Circuit Court of Appeals on November 5th, the decision confirms that the Federal Energy Regulatory Commission (FERC) cannot reject certain environmental conditions that states impose on hydropower dams when dam owners renew their operating licenses.
"This is an important decision for states' rights," stated Margaret Bowman, Director of Hydropower Programs at American Rivers. "The court affirmed that FERC may not stand in the way of states' actions to protect their water quality."
Dam owners must apply to FERC for licenses to operate hydro dams, but states must certify that the dam will not violate state water quality standards. FERC had sought to impose its authority over state water quality review by reviewing state conditions and rejecting those that FERC concludes are not sufficiently related to water quality. The court concluded that review of state conditions is done by the courts not by a federal agency with no authority under the Clean Water Act.
In American Rivers and State of Vermont v. FERC, the court concluded that the Clean Water Act provision stating that state water quality certification shall become a condition of the federal license was "unequivocal." The provision provided FERC no role in reviewing this certification other than determining that the proper state had issued the certification within the prescribed time period.
The court also rejected FERC's argument that this decision gives too much authority to the states and inappropriately limits FERC authority under the Federal Power Act. The court reasoned that the state's authority is limited because the dam owner can challenge state certification conditions in court. If the dam owner chooses not to challenge the conditions, FERC can always refuse to issue the license.
"The court confirmed that FERC's fears of unlimited state authority are unfounded." said Bowman. "States cannot take over the FERC licensing process without having to answer to the courts. The courts are the appropriate place for review of state water quality conditions."
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