State certification of hydroelectric facilities under section 401 of the Clean Water Act

Journal Article · Thu Dec 31 04:00:00 EST 1992 · Virginia Environmental Law Journal

OSTI ID:241220

Bogardus, L M

The number of hydroelectric facilities in operation increased in the late 1970s and early 1980s when Congress established incentives to encourage hydropower development. Because hydroelectric projects can cause water quality problems within the impounded water and downstream of the dam, states have required hydroelectric applicants seeking a license from the Federal Energy Regulatory Commission (FERC) to obtain certification, pursuant to section 401 of the Clean Water Act (CWA), that the project will not violate water quality standards. States have used the certification process as a device to extract improper concessions from license applicants. Some states have used section 401 to consider the impact of hydroelectric projects on factors unrelated to water quality, to condition section 401 certification upon satisfaction of requirements unrelated to water quality and to force FERC to incorporate these conditions into operating licenses. License applicants have challenged these attempts as unlawful expansions of state authority to review federal projects. This dispute between existing and potential hydroelectric plant operators and states may become a critical one in the near future. Licenses for 167 hydroelectric projects expire in 1993. License holders for 158 of these 167 projects filed applications for new licenses with FERC before the statutory deadline expired on December 31, 1991. If there is to be any consistency in these licensing and relicensing proceedings, the courts must reach a consensus on the proper role of the states in hydroelectric project licensing and the applicability of section 401.

• OSTI ID: 241220
• Journal Information: Virginia Environmental Law Journal, Journal Name: Virginia Environmental Law Journal Journal Issue: 1 Vol. 12; ISSN XZ490W
• Country of Publication: United States
• Language: English

Related Subjects

13 HYDRO ENERGY
CERTIFICATION
CLEAN WATER ACTS
COMPLIANCE
EVALUATION
HYDROELECTRIC POWER PLANTS
LICENSING
REGULATIONS