NATIONAL LAW REVIEW • April 30, 2020
On April 15, 2020, FERC issued a new license for the Brassua Hydroelectric Project in Maine, in which it determined that the Maine Department of Environmental Protection (Maine DEP) had waived its authority to issue a Section 401 WQC for the project by failing to act on the WQC application within one year from receipt of the application. This is the second known instance since the D.C. Circuit’s decision in Hoopa Valley that FERC has proactively ruled that a state agency waived its 401 authority where the license applicant did not request such a determination. On the same day, FERC also issued a new license for the Barker’s Mill Project in Maine. In contrast to the Brassua license order, FERC did not even raise the issue of whether Maine DEP waived its Section 401 authority, even though the applicant had withdrawn and resubmitted its application, a practice found to be inconsistent with another case.