When the Federal Energy Regulatory Commission (FERC) authorizes a hydroelectric project, the project operator must apply for a water quality certification from the state. FERC cannot authorize a project if a state denies the application for certification. States may issue conditional certifications that impose operational limitations on the project. These limitations become conditions of FERC’s authorization.

States must deny the application or issue the certification (with or without limitations), within one year of the application; states waive their power to deny or issue by failing to act within a year.

FERC Renewals Pose Challenges
This process can be a challenge when a current project’s FERC authorization is up for renewal. The state may inform the project that it will impose stringent new requirements unless the project gathers data and performs studies to justify less stringent requirements, a process that often takes more than a year.

States Can Waive by Encouraging Multiple Withdrawals
In such cases, FERC generally allows the project to operate during the certification process. To handle the one-year requirement, FERC allows the project to withdraw and resubmit its application for state certification. However, states can waive their certification power by encouraging multiple withdrawals to allow the state to avoid ruling on an application.

No Evidence to Support Waiver
A recent DC Circuit opinion rejected an operator’s argument that the state waived its certification power. Waiver only occurs when the state is complicit in the delay. In the recent case, the operator had no evidence that the state agreed to or encouraged withdrawals and resubmissions. The withdrawals were due to the operator needing more time to gather and analyze data. The state retained its water quality certification power.

To see the opinion https://media.cadc.uscourts.gov/opinions/docs/2025/05/21-1042-2116119.pdf