In a significant victory for the hydropower industry, last week the U.S. District Court for the District of Oregon issued an order in Cascadia Wildlands v. EWEB (Case No. 6:25-00446), reaffirming that the U.S. courts of appeals, on review of orders of the Federal Energy Regulatory Commission (FERC), have exclusive jurisdiction over controversies related to fish passage and other environmental measures included in hydropower licenses issued by FERC. This decision adds to precedent making clear that project opponents may not collaterally attack fish passage conditions in FERC licenses via citizen suits filed under the Endangered Species Act (ESA).
FERC Revises Regulations Implementing NEPA; Adopts Two Hydropower-Related Categorical Exclusions
On July 3, 2025, the Federal Energy Regulatory Commission (FERC) issued a final rule revising its regulations implementing the National Environmental Policy Act of 1969 (NEPA) to remove references to the recently rescinded regulations implementing NEPA originally promulgated in 1978 by the White House’s Council on Environmental Quality (CEQ). On the same day, FERC issued an order adopting two categorical exclusions under NEPA for certain hydropower-related activities.
One-Track Mind: Unanimous SCOTUS Decision on Rail Line Approval Further Narrows Scope of NEPA
On May 29, the Supreme Court issued a unanimous opinion in Seven County Infrastructure Coalition v. Eagle County, Colorado that dramatically changes the way courts scrutinize federal agencies’ environmental reviews under the National Environmental Policy Act (NEPA). Justice Brett Kavanaugh, writing for a five-justice conservative majority (with Justice Neil Gorsuch abstaining), held that (a) courts must afford federal agencies “substantial judicial deference” regarding both the scope and contents of their environmental analyses; and (b) courts do not need to consider the effects of the action to the extent they are “separate in time or place” from the proposed project. The ruling gives federal agencies permission to greatly streamline their NEPA analyses at a time when those agencies are rapidly being drained of their resources and facing increasing pressure to expedite lengthy permitting processes.
Western Pond Turtle Listing Will Impact Land and Water Managers Throughout the Western U.S.
The U.S. Fish and Wildlife Service (FWS) has proposed listing the northwestern pond turtle (Actinemys marmorata) and the southwestern pond turtle (Actinemys pallida) as threatened species under the federal Endangered Species Act (ESA), with a final listing decision likely to occur next year. Listing the turtles would affect large swaths of California, Oregon, Washington, and parts of Nevada — the northwestern pond currently inhabits portions of Washington, Oregon, Nevada, as well as northern and central California, and the southwestern pond turtle is found in central and southern California from northern Monterey County into Baja California, Mexico. The turtles rely on aquatic habitats such as streams, ponds, and adjacent uplands, and they are found from cool coastal regions to the Mojave River watershed.
Fish and Wildlife Service Announces Funding Grants for Fish Passage
On November 17, the U.S. Fish and Wildlife Service (Service) announced that $38 million in grant funding is available in fiscal year 2023 for fish passage projects. The goal is to award this funding to projects that address outdated, unsafe, or obsolete dams, culverts, levees, and other barriers. This funding effort is part of an overall $200 million commitment set out in the Bipartisan Infrastructure Law (BIL) and is part of the National Fish Passage Program (NFPP). The NFPP is a voluntary program that provides direct technical and financial assistance for restoration of aquatic organism passage and aquatic connectivity.
Supreme Court of California Finds FERC License Preempts Challenge to FERC Order
On August 1, the Supreme Court of California upheld a decision by the Court of Appeal, which found that the Federal Power Act (FPA) preempts application of the California Environmental Quality Act (CEQA) when the state is acting on its own behalf as licensee of a hydroelectric project.
FERC Denies Interior’s Requirement for Ongoing Species Notifications
On September 22, the Federal Energy Regulatory Commission (Commission or FERC) issued an order on rehearing (Rehearing Order), denying the U.S. Department of the Interior’s (Interior) request to include a requirement for a hydroelectric project to notify resource agencies if any activity may affect a federally listed Endangered Species Act (ESA) species and had not already been considered in the issued license (Notification Recommendation).
EPA’s Clean Water Act Certification Proposal to Significantly Impact Hydropower Licensing
This article was republished in Pratt’s Energy Law Report (Vol. 22-10, November-December 2022).
On June 1, the Environmental Protection Agency (EPA) released a pre-publication version of its proposal to re-write the Clean Water Act Section 401 rule (Certification Proposal), which, if finalized, is expected to have far-reaching impacts on hydroelectric licensing and relicensing. The Certification Proposal is intended by EPA to replace the version of the rule finalized under the Trump administration in 2020 (2020 Rule). While the Certification Proposal maintains some aspects of the 2020 Rule, it differs in some significant areas and in many ways reverts back to the 1971 regulations.
Hydropower Industry Teams With Tribes, Conservation Organizations to Develop Legislative Package for Licensing Reform
On April 3, representatives of the hydropower industry, Native American tribes, and conservation organizations provided a package of proposed legislative reforms to the Federal Power Act (FPA) to the ranking members of the U.S. Senate’s Energy and Natural Resources Committee and the U.S. House of Representatives’ Energy and Commerce Committee. The package, which was developed as part of the Stanford University Uncommon Dialogue on hydropower and river conservation, is the result of year-long intense negotiations between a variety of hydropower stakeholders.
Court Decision to Vacate, Remand State Water Quality 401 Certification Rule
On October 21, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (EPA) 2020 Clean Water Act Section 401 final rule (Certification Rule).
In response to the court’s ruling, EPA is implementing the previous water quality certification rule nationwide, which had been in effect since 1971, while it develops a new rule.
Pursuant to Section 401 of the Clean Water Act (CWA), no federal license or permit that may result in a discharge to U.S. waters may be issued unless the state or authorized Tribe, where the discharge will originate, issues a water quality certification or waives the certification requirement.