As part of Morrison & Foerster’s Summer Associate Program, I had the opportunity to work with Palo Alto partner Bryan Wilson and San Francisco associate Justin Fisch on a pro bono project involving the Tuolumne River Trust (TRT). The environmental advocacy organization seeks to protect and restore the Tuolumne River—which flows through Central California, from the High Sierra to the San Joaquin River in the Central Valley—and its watershed for present and future generations.
Two dam licensing projects on the Tuolumne are of interest to the TRT: one for the Don Pedro Dam, the tenth tallest in the United States, and the second concerning the La Grange Dam; the two dams combined serve as a source of power, water, and recreation for the Central Valley region. In order to protect the river and its ecosystems, the dams must be licensed in cooperation with state and federal authorities. The current license for the Don Pedro Dam expired in April 2016 after 50 years, and the Irrigation Districts that own it are currently operating on a year-to-year renewal basis until a long-term license is granted by the Federal Energy Regulatory Commission (FERC).
A 2019 decision in Hoopa Valley Tribe v. FERC by the D.C. Circuit upended licensing procedures elsewhere in the state, and TRT wants to make sure that won’t happen on the Tuolumne. The court rejected a commonly used practice for working around the one-year statutory limit for state certification—withdrawal-and-resubmittal of applications—and found that California and Oregon had waived their water quality certification authority under Section 401 of the Clean Water Act (CWA) by following this practice.
Under Section 401 a federal agency can only approve a project that may result in a “discharge to the navigable waters” once the applicant has obtained water quality certifications from the affected state. However, in several recent cases, the states were determined to have waived their authority under section 401 by “failing or refusing 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 decision also created a cascade of problems for state and tribal certifying authorities, as well as environmental organizations, as states’ and tribes’ right to control water quality standards within their respective jurisdictions came into question. Many project applicants had asked FERC to waive the states’ abilities to condition water quality certification, as permitted under CWA section 401.
I was tasked with understanding the differences between state action in denying water quality certification of dam projects and situations where project proponents’ requests for water quality certification were withdrawn and resubmitted to certifying agencies, similar to the situation in Hoopa Valley. I delved into the arguments in Hoopa Valley and the Clean Water Act’s legislative history to answer this narrow procedural question.
In my research, I found that the Clean Water Act had two clear, specific intents. First, Congress designed section 401 to allow states to control the water quality of rivers within their own borders. Congress didn’t want to subvert state control. Second, Congress added the one-year limitation to prevent states that didn’t have clean water standards from delaying the federal licensing process. Congress did not implement the one-year limitation to prevent states with rigorous and exigent water quality standards, such as California, from denying applications that didn’t comply with that state’s water quality requirements and standards.
I worked closely with Justin, an associate in the firm’s Environmental and Social Enterprise + Impact Investing Groups, to develop a memorandum for the client to deconstruct this complex and critical distinction. I spent my first week on the issue getting an understanding of the setup of the Hoopa Valley decision and the landscape of the Clean Water Act. Justin directed me to MoFo’s Library Services when I felt overwhelmed by the scale of the research. Robyn Bytheway, an incredible MoFo librarian, was able to find a cross-section of cases, legislative history, and State Water Board denials that I was able to work through.
We also attended a strategy meeting between several water advocacy organizations, which impressed on me how serious this issue is for so many parties involved. Restricting states’ rights to control water quality within their own borders is only one of many recent federal decisions that weaken water quality protections that states have fought hard for decades to put in place. The Tuolumne River Trust was extremely encouraged by the memo I drafted for them. I’m confident that my work will be useful for the TRT and other water advocacy organizations in the coming months and years as organizations seek to ensure that relicensed dams and energy projects properly abide by state-level environmental standards throughout the remainder of their relicensed term (often 40–50 years into the future, in other words, generations).
I have always been someone who cares deeply about the environment. This fall, I will be participating in the Columbia Environmental Law Clinic upon returning from my summer associate position to law school. When I begin my legal career full-time, I plan to practice as an intellectual property litigator. But one of the reasons I joined Morrison & Foerster this summer was for the opportunity to pursue an avid pro bono practice. Bryan, a partner in the firm’s Intellectual Property Group, and Justin are perfect examples of how MoFo lawyers are working together to do important work. The combination of Justin’s experience in environmental and social impact law and Bryan’s conservation experience makes them powerful advocates for the Tuolumne River Trust and the environment in the state they call home. I look forward to returning to MoFo and continuing to moonlight as an environmental attorney, fighting for a clean environment.
Ian Bennett is a rising 2L at Columbia Law School. He graduated on the Dean’s Honor List from McGill University in 2019 with a Bachelor of Engineering in Chemical Engineering. Ian is thrilled to be a part of Morrison & Foerster’s two-summer patent program for patent litigation at the Palo Alto office, as he plans to pursue a career as an IP litigator upon graduation. Fun fact: Ian is an enthusiastic hiker. He once snowshoed up Mt. Garibaldi during the winter and camped overnight as temperatures reached zero degrees.