January 28, 2019

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
WAGLAC San Diego Meeting
February 18-20, 2019
The Westin San Diego
San Diego, CA
WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General will speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA). 

Please complete a registration form (located at the bottom of the meeting announcement) and email to CWAG Executive Assistant, Joy Orr at  joy.orr@doj.ca.gov or fax to 916-323 0241 by no later than  January 28th, 2019.
NAAG Winter Meeting
March 4-6, 2019
Washington, D.C.

CWAG, as part of the NAAG Spring Meeting, sets up meetings with the heads of federal agencies.  The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. This year CWAG plans to meet with the Department of Interior. Please send Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior. 
Hoopa Valley Tribe v. FERC

As part of the Klamath Hydroelectric Settlement Agreement (KHSA), California, Oregon, PacifiCorp, Native American tribe s environmental groups and water users agreed to decommission some of PacificCorp’s dams on the Klamath River. The agreement contained the following paragraph that required California’s and Oregon’s Section 401 Certification be held in abeyance:

"Within 30 days of the Effective Date, the Parties, except ODEQ [Oregon Department of Environmental Quality], will request to the California State Water Resources Control Board and the Oregon Department of Environmental Quality that permitting and environmental review for PacifiCorp’s FERC Project No. 2082 [Klamath Hydroelectric Project] licensing activities, including but not limited to water quality certifications under Section 401 of the CWA and review under CEQA [California Environmental Quality Act], will be held in abeyance during the Interim Period under this Settlement. PacifiCorp shall withdraw and refile its applications for Section 401 certifications as necessary to avoid the certifications being deemed waived under the CWA during the Interim Period."

See KHSA at 42. 

The Hoopa Valley Tribe is not a party to the KHSA, and on May 25, 2012 petitioned FERC for a declaratory order finding: 1. California and Oregon had waived their Section 401 certification authority, and that 2. PacifiCorp had failed to “diligently prosecute its licensing application for the Project. FERC denied the petition on June 19, 2014. The Tribe filed a petition challenging FERC’s order with the District of Columbia Court of Appeals. On January 25, 2019, the Court of Appeals issued the attached opinion finding that California and Oregon had waived their Section 401 Certification Authority.

First, the Court addressed Oregon’s assertion in its amicus curie brief that the case should be dismissed for failure to joint an indispensable party. Oregon argued that the Tribe was challenging Oregon’s 401 certification authority, and it had not waived the state’s sovereign immunity. The Court held Fed. R. App. P. 15 only requires FERC be named as party since it was the agency’s order that was being challenged. The Court then addressed the merits of the Tribe’s claims.

The Court stated: “Resolution of this case requires us to answer a single issue: whether a state waives its Section 401 authority when, pursuant to an agreement between the state and applicant, an applicant repeatedly withdraws-and-resubmits its request for water quality certification over a period of time greater than one year. If this type of coordinated withdrawal-and-resubmission scheme is a permissible manner for tolling a state’s one-year waiver period, then (1) California and Oregon did not waive their Section401 authority; (2) PacifiCorp did not fail to diligently prosecute its application; and (3) FERC did not abdicate its duty. However, if such a scheme is ineffective, then the states’ and licensee’s actions were an unsuccessful attempt to circumvent FERC’s regulatory authority of whether and when to issue a federal license.

Determining the effectiveness of such a withdrawal-and- resubmission scheme is an undemanding inquiry because Section 401’s text is clear.

If the State, interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence.

The temporal element imposed by the statute is “within a reasonable period of time,” followed by the conditional parenthetical, “(which shall not exceed one year).” See id. Thus, while a full year is the absolute maximum, it does not preclude a finding of waiver prior to the passage of a full year. Indeed, the Environmental Protection Agency (“EPA”)—the agency charged with administering the CWA—generally finds a state’s waiver after only six months. See 40 C.F.R. § 121.16.”

. . . . 

This case presents the set of facts in which a licensee entered a written agreement with the reviewing states to delay water quality certification. PacifiCorp’s withdrawals-and-resubmissions were not just similar requests, they were not new requests at all. The KHSA makes clear that PacifiCorp never intended to submit a “new request.” Indeed, as agreed, before each calendar year had passed, PacifiCorp sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same ...in the same one-page letter ...for more than a decade. Such an arrangement does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project.

. . . .

There is no legal basis for recognition of an exception for an individual request made pursuant to a coordinated withdrawal-and-resubmission scheme, and we decline to recognize one that would so readily consume Congress’s generally applicable statutory limit. Accordingly, we conclude that California and Oregon have waived their Section 401 authority with regard to the Project.”
WGA Urges EPA and Corps to Extend WOTUS Comment Period

The Western Governors’ Association urges the Environmental Protection Agency and Army Corps of Engineers to extend the “insufficient” comment period for the proposed rule, Revised Definition of “Waters of the United States.”

“The proposed rule will have substantial impacts on the balance of state and federal authority to manage and protect the nation’s water resources, as well as the state-federal partnerships that are involved in the implementation of the Clean Water Act,” states the letter signed by WGA Executive Director James Ogsbury.

The Jan. 17, 2019 outreach to EPA Acting Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James notes the 60-day comment period is “insufficient for states to adequately review the content.”

The letter also asserts, “as co-regulators of water resources, states should be fully consulted and engaged in any process that may affect the management, allocation, or protection of water resources. Federal decisions that are informed by state expertise and viewpoints result in more effective, efficient, and durable federal policy that positively affects the state-federal relationship and better serves our common constituencies.”
Decade of Heavy Storms Has Helped Northwest Glaciers, But Don’t Expect That To Last, Studies Show
A first-of-its-kind survey shows just how much the region's glaciers have melted over the past decades as the climate warms. It also shows how changes in atmospheric patterns may have masked how bad it could get.
The Seattle Times
January 22, 2019

Glaciers in western North America over the past 18 years have lost some 117 gigatons of ice — enough that if it was melted and spread across the state of Washington it would come up our knees, said David Shean, co-author of a recent study cataloging glacial loss.

Understanding how glaciers are shrinking and the speed of that process could help predict local effects of climate change, and how these masses of ice are interacting with a warming world. This study, and others, suggest the melting of Northwest glaciers could intensify, as long-term weather patterns shift.

During the 18-year period of study, the glaciers that Shean and other scientists examined were responsible for nearly one-third of a millimeter of global sea-level rise, according to the paper, which was published in Geophysical Research Letters earlier this month.
AG Ferguson to Sue if Navy Continues to Pollute Puget Sound, Harming Salmon, Orcas and Other Marine Life
Navy ignored concerns raised by EPA, Washington Department of Ecology
January 17, 2019

In a letter to the federal government, Attorney General Bob Ferguson announced his intent to join a lawsuit challenging the U.S. Navy’s process to scrape the hulls of decommissioned vessels, which leads to ongoing pollution of Sinclair Inlet and harms salmon and orcas.

To clean a 60,000-ton, decommissioned aircraft carrier before transport, the Navy scraped the hull of the ship in Puget Sound in January 2017. The process released approximately 50 dump truck loads of solid materials, including copper and zinc, into the sound. Copper and zinc are highly toxic to marine life. A study conducted by the Navy found that the level of pollutants it released far exceed standards allowed by Washington state. The initial release of these metals, and their continued discharge of pollutants into the inlet, violate state and federal laws.
White House Eyes Energy Push as Russia Strategy
Potential executive orders could ease the way for new pipeline projects.
January 23, 2019

The White House is weighing executive orders to streamline construction of pipelines and limit state water quality authority to boost the U.S. energy industry in an attempt to portray strength against Russia.

The moves the White House is considering — President Donald Trump’s third effort to help pipeline companies — include possible executive orders that would weaken states’ power to block energy projects and ease the construction of new pipelines to facilitate the movement of a glut of domestic oil and gas, according to a senior administration official and others familiar with the effort.

The administration official said the pipeline executive order would be “quite similar” to the president’s previous actions, but “broader, deeper.”
WGA Urges DOEs to Collaborate With Western States on Hydropower Licensing

The Western Governors’ Association (WGA) urges the Department of Energy’s Water Power and Technologies Office to collaborate with western states in any effort to shape federal policy on hydropower licensing.

“DOE should take affirmative steps to ensure that the voices, expertise and insights of western states are adequately represented in its Stakeholder Working Group,” states the letter signed by WGA Executive Director Jim Ogsbury. “WGA views this as an opportunity to improve the state-federal relationship, a principal policy objective of Western Governors.”

The Jan. 24 letter to Water Power Technologies Office Director Alejandro Moreno included WGA Policy Resolution 2018-08, Water Resource Management in the West, as well as previous correspondence to DOE communicating the expectation of Western Governors that the Department will provide states with opportunities for early, meaningful and substantive input in the development of regulatory policies.

“Western states have intimate and hands-on knowledge of hydropower licensing and associated state water quality certification processes that would be invaluable to your examination of the licensing and authorization process. Governors’ involvement will help assure that all the areas of state interest impacted are properly integrated into this exercise.”
Hydro One/Avista Merger Cancelled After State Option

Hydro One Ltd. and Avista announced they were terminating Hydro One’s “proposed takeover of Spokane, Wash.-headquartered Avista Corp., an approximately $6.7-billion deal that was announced in July 2017,” after Idaho’s and Washington’s utility commissions issued orders denying approval of the takeover. The Financial Post states “Hydro One Ltd. is paying a US$103 million break fee to scuttle its acquisition of [Avista], but the ultimate cost of the failed deal is likely to be much higher than that for the Ontario electrical utility. The decision was not unexpected as it came after state regulators in the United States rejected the arrangement, citing concerns about political interference by the Ontario government, Hydro One’s biggest shareholder.”
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.