Opposition Brief — California Trout, et al., Petitioners v. Hoopa Valley Tribe, et al.

No. 19-257

In the

Supreme Court of the United States

__________________

CALIFORNIA TROUT & TROUT UNLIMITED,

Petitioners,

v.

HOOPA VALLEY TRIBE & FEDERAL ENERGY

REGULATORY COMMISSION, ET AL.,

Respondents.

__________________

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

__________________

HOOPA VALLEY TRIBE’S

BRIEF IN OPPOSITION

__________________

THANE D. SOMERVILLE

Counsel of Record

THOMAS P. SCHLOSSER

MORISSET, SCHLOSSER, JOZWIAK &

SOMERVILLE APC

811 First Avenue, Suite 218

Seattle, WA 98104

(206) 386-5200

t.somerville@msaj.com

Counsel for Respondent

Hoopa Valley Tribe

October 28, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether the D.C. Circuit correctly concluded that a

state’s express agreement to not act on an applicant’s

request for certification pursuant to Section 401 of the

Clean Water Act, 33 U.S.C. § 1341(a)(1), for a period of

time greater than one year constitutes a refusal or

failure to act by the state that results in waiver of the

state’s certification authority under 33 U.S.C.

§ 1341(a)(1)?

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Re-Licensing Proceeding . . . . . . . . . . . . . 4

II.

The Certification Proceeding and Related

Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

III.

The Proceedings Below . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I.

The D.C. Circuit’s Decision Does Not Conflict

With The Decision Of Any Other Court . . . . 10

A. There Is No Conflict With Fourth Circuit

Authority . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. There Is No Conflict With Second Circuit

Authority . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. There Is No Conflict With Ninth Circuit

Authority . . . . . . . . . . . . . . . . . . . . . . . . . 14

II.

The D.C. Circuit’s Decision Does Not Involve

Legal Issues That Require This Court’s

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

III.

The D.C. Circuit Decision Preserves Federal

Jurisdiction to Regulate Hydroelectric

Development . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

IV.

The D.C. Circuit Ruled Correctly On The

Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iv

TABLE OF AUTHORITIES

CASES

AES Sparrows Point LNG v. Wilson,

589 F.3d 721 (4th Cir. 2009). . . . . . . . . . . . . 11, 12

Alcoa Power Generating, Inc. v. FERC,

643 F.3d 963 (D.C. Cir. 2011) . . . . . . . . . . 1, 15, 23

California v. FERC,

966 F.2d 1541 (9th Cir. 1992). . . . . . . . . . . . . . . 14

City of Tacoma v. FERC,

460 F.3d 53 (D.C. Cir. 2006). . . . . . . . . . . . . . . . 21

Constitution Pipeline Co. v. N.Y. State Dep’t of

Envtl. Conservation, 868 F.3d 87 (2d Cir. 2017),

cert. denied, 138 S. Ct. 1697 (2018) . . . . . . . 13, 14

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019) . . . . . . . . . . . . . . . 4

N.Y. Dep’t of Envtl. Conservation v. FERC,

884 F.3d 450 (2d Cir. 2018) . . . . . . . . . . . . . 12, 13

PUD No. 1 v. Washington, Dept. of Ecology,

511 U.S. 700 (1994). . . . . . . . . . . . . . . . . . . . . . . 15

S.D. Warren Co. v. Me. Bd. of Envtl. Protection,

547 U.S. 370 (2006). . . . . . . . . . . . . . . . . . . . . . . 15

STATUTES AND REGULATIONS

16 U.S.C. § 797(e) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

16 U.S.C. § 803(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 21

16 U.S.C. § 803(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 20

v

16 U.S.C. § 803(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 20

16 U.S.C. § 803(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

16 U.S.C. § 808(a)(1) . . . . . . . . . . . . . . . . . . . 7, 21, 22

16 U.S.C. § 811 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

33 U.S.C. § 1341(a)(1) . . . . . . . . . . . . . . . . . . . passim

REGULATIONS

18 C.F.R. Part 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

18 C.F.R. § 5.5(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

18 C.F.R. §§ 5.8-5.22 . . . . . . . . . . . . . . . . . . . . . . . . 17

33 C.F.R. § 325.2(b)(1)(ii) . . . . . . . . . . . . . . . . . . . . . 11

40 C.F.R. § 121.16 . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULES

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10

OTHER AUTHORITIES

84 Fed. Reg. 44080 (August 22, 2019) . . . . . . . . . . . 23

FPL Energy Maine Hydro LLC,

139 FERC 61215 (2012) . . . . . . . . . . . . . . . . . . . 20

1

INTRODUCTION

Pursuant to Section 401(a)(1) of the Clean Water

Act, an applicant seeking a federal license to operate

hydroelectric facilities on navigable waters must

request and obtain a certification from the relevant

state that any discharge from the proposed federally

licensed project would comply with applicable state

water quality standards. 33 U.S.C. § 1341(a)(1).

Section 401(a)(1) prevents issuance of a federal license

until the required water quality certification has been

obtained or until the state waives its certification

authority. Id. Once the state either grants or waives

certification, the federal license may be issued. Id.

Issuance of a federal license is barred if the state

timely denies certification. Id.

Section 401(a)(1) addresses waiver of certification

and when it has occurred. “If the State . . . 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.” Id. “The purpose

of the waiver provision is to prevent a State from

indefinitely delaying a federal licensing proceeding by

failing to issue a timely water quality certification

under Section 401.” Alcoa Power Generating, Inc. v.

FERC, 643 F.3d 963, 972 (D.C. Cir. 2011).

In the decision below, the D.C. Circuit addressed

the question of “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

2

certification over a period of time greater than one

year.” Petitioners’ Appendix [Pet. App.] 10a. The case

presented “the set of facts in which a licensee entered

a written agreement with the reviewing states to delay

water quality certification.” Id. at 12a. Although the

applicant withdrew-and-resubmitted its certification

request each year pursuant to agreement, neither the

applicant nor the States of California or Oregon

intended any action be taken on the certification

requests. Id. at 10a-13a. The states and applicant

agreed on this withdrawal-and-resubmission scheme

solely as an attempt to avoid a finding of waiver under

Section 401. Id.

Section 401 requires state action within a

reasonable period of time not to exceed one year. 33

U.S.C. § 1341(a)(1). The D.C. Circuit found that

“California and Oregon’s deliberate and contractual

idleness defies this requirement.” Pet. App. 13a.

Because the states expressly committed to not process

the certification requests pending before them as well

as future requests, the D.C. Circuit concluded that the

states waived their certification authority under Clean

Water Act Section 401. Id. at 10a – 14a.

The D.C. Circuit correctly applied the plain

language of Section 401 of the Clean Water Act, 33

U.S.C. § 1341(a)(1), to the unique facts of this case.

This Court should deny certiorari because the D.C.

Circuit’s decision does not conflict with any decision of

any court. Sup. Ct. R. 10(a). Nor does the case present

issues that otherwise require this Court’s intervention.

Sup. Ct. R. 10(c).

3

The D.C. Circuit decision implements Congress’

intent as expressed in Clean Water Act Section 401 by

ensuring timely state action on certification requests.

The decision does not limit or impair state authority to

protect water quality in any respect. States retain

their full authority to deny or condition proposed

federal licenses that could impair water quality within

their state. The D.C. Circuit decision also prevents the

impairment of federal jurisdiction that occurs from the

kind of coordinated withdrawal-and-resubmission

scheme at issue in this case. Review by this Court is

also not required at this time because the U.S.

Environmental Protection Agency (EPA), the agency

charged with primary authority to administer the

Clean Water Act, has recently initiated a

comprehensive rulemaking to address implementation

of Section 401 certification, including issues addressed

in the D.C. Circuit decision.

There is not any compelling reason that supports

granting the petition in this fact-specific and correctly

decided case. Sup. Ct. R. 10. The petition should be

denied.

STATEMENT

In 1954, the Federal Power Commission (now, the

Federal Energy Regulatory Commission (FERC))

issued a fifty-year license for operation of the Klamath

Hydroelectric Project (Project). Pet. App. 22a. The

Project consists of five principal mainstem dams and

other related hydropower developments that span

approximately 64 river miles on the Klamath River

within northern California and southern Oregon. Joint

4

Appendix at 139, Hoopa Valley Tribe v. FERC, 913

F.3d 1099 (D.C. Cir. 2019) [herein D.C. Cir. J.A.].

Respondent Hoopa Valley Tribe is a federally

recognized Indian tribe. The Hoopa Valley Reservation

is located within the State of California and

downstream from the Project. The Klamath River

flows through the Hoopa Valley Reservation

downstream of the Project.

I.

The Re-Licensing Proceeding.

The Project license, currently held by PacifiCorp,

expired in 2006. Pet. App. 22a. Prior to that date, on

February 25, 2004, PacifiCorp filed an application with

FERC for a new Project license. Id. In December 2005,

FERC issued notice that the re-licensing application

was ready for environmental analysis. D.C. Cir. J.A. at

161. In January 2007, the Departments of Interior and

Commerce issued final mandatory conditions pursuant

to Federal Power Act Sections 4(e) and 18 regarding

minimum flows, fish passage, and other mitigation

requirements. D.C. Cir. J.A. at 112-125. Other

governments and resource agencies, including the

Hoopa Valley Tribe, submitted recommended

conditions pursuant to Federal Power Act Sections

10(a) and 10(j). D.C. Cir. J.A. at 161-162.

FERC completed environmental analysis for the

Project re-licensing and published its Final

Environmental Impact Statement in November 2007.

Pet. App. 22a. FERC found that the Project causes

significant impacts on the Klamath River environment

and that placing new terms and conditions in the

license would “enhance water quality, help restore

5

anadromous fish to historical habitat, protect fish and

terrestrial resources, improve public use of recreational

facilities and resources, and maintain and protect

historic and archaeological resources within the area

affected by project operations.” D.C. Cir. J.A. at 244.

As of November 2007, FERC had completed all steps

necessary to re-license the Project with

environmentally protective conditions. Id. at 800.

Today, more than thirteen years after license

expiration, the re-licensing has not been completed and

the Project continues operating pursuant to annual

licenses that incorporate the terms and conditions of its

expired license issued in the 1950’s. A primary reason

for the delay that has occurred in the re-licensing

proceeding is the failure and refusal of the States of

California and Oregon to act on water quality

certification requests filed by PacifiCorp.

II.

The Certification Proceeding and Related

Agreements.

PacifiCorp applied for water quality certification

from the California State Water Resources Control

Board (SWRCB) and the Oregon Department of

Environmental Quality (ODEQ) in March 2006. Pet.

App. 24a.

In 2010, PacifiCorp and other parties

entered into an agreement known as the Klamath

Hydroelectric Settlement Agreement (KHSA). Pet.

App. 5a. The KHSA provided that decommissioning

and removal of certain Project dams could commence in

2020 upon satisfaction of numerous contingencies,

including Congressional approval. Pet. App. 5a-6a.

Though the Hoopa Valley Tribe supports removal of

Project dams, the Tribe did not sign the KHSA. Section

6

6.5 of the KHSA called for abeyance of water quality

certification proceedings and required PacifiCorp to

“withdraw and re-file its applications for Section 401

certifications as necessary to avoid the certifications

being deemed waived under the CWA . . .” Pet. App.

6a.

ODEQ and the State of Oregon are KHSA

signatories. D.C. Cir. J.A. at 409-410. After the KHSA

became effective, ODEQ agreed to hold Oregon’s

Section 401 certification proceeding in “abeyance.”

D.C. Cir. J.A. at 498. In a March 29, 2010 letter to

PacifiCorp, ODEQ confirmed it would accept

PacifiCorp’s request to not process its future water

quality certification requests:

On March 22, 2010, [ODEQ] received a request

from [PacifiCorp] to hold in abeyance further

review of the application for water quality

certification under Section 401 of the Clean

Water Act for PacifiCorp Energy’s Klamath

Hydroelectric Project . . . . In accordance with

Section 6.5 of the KHSA, ODEQ will hold in

abeyance further processing of Klamath

Hydroelectric Project Section 401 applications

submitted prior to a Secretarial

Determination . . . . During the period prior to a

Secretarial Determination, PacifiCorp will

withdraw and resubmit its application to ODEQ

for water quality certification, as necessary to

avoid waiver under the Clean Water Act.

D.C. Cir. J.A. at 498 (emphasis added).

7

California Governor Arnold Schwarzenegger signed

the KHSA on behalf of California’s Natural Resources

Agency. D.C. Cir. J.A. at 409. On May 18, 2010,

pursuant to a request made under the KHSA, the

California SWRCB resolved to: “hold in abeyance

PacifiCorp’s application for water quality certification

for the Klamath Hydroelectric Project until removal of

the California mainstem facilities of the Project . . . .”

D.C. Cir. J.A. at 501. The SWRCB passed subsequent

resolutions to continue and extend the abeyance of

processing PacifiCorp’s certification requests. D.C. Cir.

J.A. at 508-09; 522-525; 628, 641.

Following execution of the KHSA, PacifiCorp

withdrew and resubmitted its certification request with

the SWRCB in 2010, 2011, 2012, 2013, and 2014. D.C.

Cir. J.A. at 506-507, 524-525, 623-625, 794-795.

PacifiCorp also withdrew and resubmitted its

certification request each year pursuant to its

agreement with the ODEQ. D.C. Cir. J.A. at 528-530,

637-640, 789-793. Despite the withdrawals-andresubmissions of the certification requests, neither

PacifiCorp nor the States of California or Oregon

intended that any action be taken on the certification

requests. D.C. Cir. J.A. at 383, 498-502, 522-523. The

sole purpose of withdrawing-and-resubmitting the

certification requests was an attempt to avoid waiver

under Section 401. Id. In the meantime, absent

certification or waiver of certification, FERC was

precluded from completing the re-licensing, but was

also required by the Federal Power Act to allow the

Project to continue operating on annual licenses that

incorporated terms and conditions of its expired

license. 33 U.S.C. § 1341(a)(1); 16 U.S.C. § 808(a)(1).

8

III.

The Proceedings Below.

On May 25, 2012, the Tribe petitioned FERC for a

declaratory order that the States of Oregon and

California had waived their water quality certification

authority under Clean Water Act Section 401 for failing

and/or refusing to act on a certification request within

a reasonable period of time (which shall not exceed one

year) after receipt of such request. Pet. App. 33a. On

June 19, 2014, FERC dismissed the Tribe’s petition,

finding “little to be gained from finding that the states

have waived certification and then issuing a license.”

Pet. App. 28a-29a.

On July 18, 2014, the Tribe requested rehearing at

FERC. Pet. App. 34a. FERC denied rehearing on

October 16, 2014. Pet. App. 42a. FERC “agree[d] with

the Tribe that continued delays in completing the

water quality certification are inconsistent with

Congress’ intent.” Pet. App. 38a. FERC added:

We continue to be concerned that states and

licensees that engage in repeated withdrawal

and refiling of applications for water quality

certification are acting, in many cases, contrary

to the public interest by delaying the issuance of

new licenses that better meet current-day

conditions than those issued many decades ago,

and that these entities are clearly violating the

spirit of the Clean Water Act by failing to

provide reasonably expeditious state decisions;

however, notwithstanding that concern, we do

not conclude that they have violated the letter of

that statute.

9

Pet. App. 39a.

FERC concluded: “As we have

explained, it is the Clean Water Act that prescribes

when a state agency has waived certification; it is not

an exercise of discretion vested in the Commission. If

our interpretation of the statute is incorrect, that

would be for the courts to determine.” Pet. App. 42a.

On appeal, the D.C. Circuit panel unanimously

reversed and vacated FERC’s orders under review,

concluding that California and Oregon had each waived

their Section 401 certification authority by entering

into and participating in the “coordinated withdrawaland-resubmission scheme” with PacifiCorp. Pet. App.

10a-14a.

While the statute does not define ‘failure to act’

or ‘refusal to act,’ the states’ efforts, as dictated

by the KHSA, constitute such failure and refusal

within the plain meaning of these phrases.

Section 401 requires state action within a

reasonable period of time, not to exceed one

year. California and Oregon’s deliberate and

contractual idleness defies this requirement.

Id. at 12a-13a.

The record indicates that PacifiCorp’s water

quality certification request has been complete

and ready for review for more than a decade.

There is no legal basis for recognition of an

exception for an individual request made

pursuant to a coordinated withdrawal-andresubmission scheme, and we decline to

recognize one that would so readily consume

Congress’s generally applicable statutory limit.

10

Accordingly, we conclude that California and

Oregon have waived their Section 401 authority

with regard to the Project.

Id. at 14a. On April 26, 2019, the D.C. Circuit denied

the petition for rehearing en banc filed by Intervenors

California Trout and Trout Unlimited. Pet. App. 17a20a. Respondent FERC did not seek rehearing at the

D.C. Circuit, nor has FERC petitioned for certiorari.

ARGUMENT

Certiorari should not be granted in this case. The

D.C. Circuit’s decision below is not in conflict with any

other decision of any court. Sup. Ct. R. 10(a). Nor does

this matter present issues that otherwise warrant this

Court’s review. Sup. Ct. R. 10(c). The D.C. Circuit

correctly applied the plain language of Section 401 of

the Clean Water Act in what it considered to be “an

undemanding inquiry.” Pet. App. 10a. The decision

below does not limit states’ authority to deny

certification or issue certifications with conditions

pursuant to Section 401 of the Clean Water Act. The

decision below confirms that states must act in

accordance with the time limit expressly prescribed by

Congress in Section 401. There is not any compelling

reason that supports granting the petition in this factspecific and correctly decided case. Sup. Ct. R. 10. The

petition should be denied.

I.

The D.C. Circuit’s Decision Does Not

Conflict With The Decision Of Any Other

Court.

In the decision below, the D.C. Circuit addressed

the question of “whether a state waives its Section 401

11

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.” Pet. App. 10a. No other court has addressed

this question of law or addressed the unique set of facts

presented. There is no split of circuit authority. The

Court should deny the petition for a writ of certiorari.

A. There Is No Conflict With Fourth

Circuit Authority.

In AES Sparrows Point LNG v. Wilson, 589 F.3d

721 (4th Cir. 2009), the Fourth Circuit addressed the

question of when the one-year review period for Section

401 certification commenced. Id. at 729-30. The

Fourth Circuit found the text of the Clean Water Act

ambiguous on that question. Id. at 729. The Fourth

Circuit relied upon and gave Chevron deference to an

Army Corps of Engineers’ regulation, 33 C.F.R.

§ 325.2(b)(1)(ii), which provided that the state’s review

period under Section 401 commenced upon the state’s

receipt of a “valid request for certification.” Id.

Pursuant to the Corps’ regulation, the first “valid

request for certification” was received by the State of

Maryland on April 25, 2008 and thus the state’s denial

of certification on April 24, 2009 (within one-year from

the first valid request for certification) was timely and

no waiver occurred. Id. at 729-30.

There is no conflict between the decision below and

the Fourth Circuit’s decision in AES Sparrows Point

LNG. The D.C. Circuit decision below did not address

whether the one-year certification review period

commences upon receipt of a “valid request” for

12

certification, which was the issue in AES Sparrows

Point LNG. The decision below did not address the

Army Corps’ of Engineers’ regulation that was

determinative in AES Sparrows Point LNG. Unlike

AES Sparrows Point LNG, the decision below involved

a state’s failure and refusal to act on a request for

certification. The decision below and AES Sparrows

Point LNG are fully compatible. That is, in a case

governed by the Army Corps’ of Engineers’ regulations,

once a valid request for certification is received, a state

must act on that request within one-year, at the most.

B. There Is No Conflict With Second

Circuit Authority.

In N.Y. Dep’t of Envtl. Conservation v. FERC, 884

F.3d 450 (2d Cir. 2018), consistent with the D.C.

Circuit’s decision below, the Second Circuit held that

the State of New York waived its Section 401

certification authority by failing to act within one-year

of a request for certification. Id. at 455-456. The state

received a request for certification on November 23,

2015 and then purported to deny the certification

request on August 30, 2017 (nearly two years after the

initial certification request). Id. at 453-454. The

Second Circuit held that the plain language of Clean

Water Act Section 401 creates a bright-line rule as to

when the review period for certification begins. Id. at

455-56. Because the State of New York failed to act

within one-year of the request for certification, the

Second Circuit found the state had waived its

authority. Id.

The Second Circuit responded to concerns presented

by the state that requiring action within one-year from

13

the certification request would require premature

decisions. Id. at 456. The Second Circuit, in dicta,

explained that a state retained authority to deny

applications without prejudice, “which would constitute

‘acting’ on the request under the language of Section

401.” Id. The Second Circuit also noted in one passing

sentence that the state “could also request that the

applicant withdraw and resubmit the application.” Id.

No further explanation, analysis, or reasoning is

provided regarding that statement, which is dicta not

central to the Second Circuit’s holding. And as

discussed below, Constitution Pipeline Co. v. N.Y. State

Dep’t of Envtl. Conservation, 868 F.3d 87 (2d Cir. 2017),

cert. denied, 138 S. Ct. 1697 (2018), cited by the Second

Circuit, did not make any ruling regarding withdrawaland-resubmission of certification requests or any issues

addressed by the decision below. Id. at 456, n. 35.

The Second Circuit’s opinion did not address the

situation presented by the D.C. Circuit decision below

in which the states expressly refused and, pursuant to

mutual agreement, failed to process an applicant’s

certification requests for many years. The Second

Circuit’s holding is consistent with the D.C. Circuit’s

decision below; that is, a state’s failure or refusal to act

on a Section 401 certification within one-year of receipt

of a certification request will result in waiver. That is

the result compelled by the plain language of Section

401 of the Clean Water Act. The Fourth Circuit,

Second Circuit, and D.C. Circuit are in accord on this

question.

Nor does Constitution Pipeline Co. v. N.Y. State

Dep’t of Envtl. Conservation, 868 F.3d 87 (2d Cir. 2017),

14

cert. denied, 138 S. Ct. 1697 (2018) address the

questions raised by the decision below. In that case,

the applicant for a Section 401 certification withdrew

and resubmitted its certification request on at least two

occasions. The applicant argued that the state had

waived its Section 401 certification authority by failing

to act within one-year of the initial certification

request. Id. at 99-100. The Second Circuit ruled that

it lacked jurisdiction to address that issue. Id. at 100.

That Second Circuit decision is not in conflict with the

D.C. Circuit’s decision below.

C. There Is No Conflict With Ninth Circuit

Authority.

Petitioners also cite California v. FERC, 966 F.2d

1541 (9th Cir. 1992) as a source of possible conflict.

That case involved application of a FERC regulation

that provides the one-year certification review period

commences upon the state’s receipt of a certification

request. Id. at 1552. That regulation became effective

on May 11, 1987 and FERC applied the regulation

retroactively to pending license applications including

those pending for more than one year from the receipt

of a certification request. Id. at 1552-1554. The Ninth

Circuit held that FERC’s regulation was consistent

with Clean Water Act Section 401, that retroactive

application of the regulation to pending license

applications was permissible, and that California

waived its certification authority by not acting on a

request within one year of the date of receipt of the

request. Id. This Ninth Circuit opinion is not in

conflict with and is consistent with the D.C. Circuit’s

decision below because both decisions show that

15

Section 401 requires state action on a certification

request within one year.

II.

The D.C. Circuit’s Decision Does Not

Involve Legal Issues That Require This

Court’s Review.

States have broad authority to deny or impose

conditions on federal licenses pursuant to Clean Water

Act Section 401. 33 U.S.C. § 1341(a)(1); S.D. Warren

Co. v. Me. Bd. of Envtl. Protection, 547 U.S. 370 (2006);

PUD No. 1 v. Washington, Dept. of Ecology, 511 U.S.

700 (1994). The D.C. Circuit decision below does not

limit the authority of states to protect water quality

through the certification provisions of Section 401.

Rather, it ensures and requires that states timely

exercise their authority to protect water quality within

their state.

For certification requests that have been pending

for less than one year and for all future certification

requests, the D.C. Circuit decision has no effect

whatsoever on states’ authority to veto, pursuant to

denials issued under Section 401, proposed federal

projects that may cause harmful effects to water

quality.

33 U.S.C. § 1341(a)(1); Alcoa Power

Generating, Inc. v. FERC, 643 F.3d 963, 971 (D.C. Cir.

2011) (recognizing states’ power to veto federal projects

through timely denial of Section 401 water quality

certification). For such certification requests, the D.C.

Circuit decision also has no effect on states’ authority

to issue certifications containing terms and conditions

protective of water quality. State authority to timely

exercise the power granted by Section 401 of the Clean

Water Act is unimpaired.

16

This case does not present any challenge to state

authority to deny certification or condition federal

licenses pursuant to Clean Water Act Section 401. This

case arose out of the failure and refusal of California

and Oregon to timely exercise their authority to protect

water quality pursuant to Section 401. Although the

states had the option to veto the Klamath Project

license through denial or regulate the Project through

imposition of mandatory conditions, the states chose to

not exercise their statutory authority under Section

401. Instead, the states committed through the KHSA

and formal resolutions to not process any certification

request filed by the applicant relating to the federal

license. D.C. Cir. J.A. at 498-502, 522-523, 628. The

states prospectively agreed to and did annually accept

PacifiCorp’s letters purporting to withdraw and

resubmit the same certification request solely in an

attempt to avoid a waiver finding. D.C. Cir. J.A. at

498, 506, 524; Pet. App. 11a-12a. Neither PacifiCorp

nor the states intended any action be taken on the

certification requests. Id.

The coordinated withdrawal-and-resubmission

scheme presented in this case circumvented FERC’s

federal licensing jurisdiction and cut FERC and the

public out of the process related to the Project’s relicensing or decommissioning. The scheme could have

continued forever in the states’ discretion, preventing

FERC from exercising its federal jurisdiction over the

re-licensing proceeding, until being ruled unlawful in

the D.C. Circuit decision below. The D.C. Circuit

decision does not limit or negate state authority to

regulate water quality under Clean Water Act Section

401. To the contrary, the decision properly prevents

17

states from avoiding their statutory obligations and

will ensure timely and effective protection of water

quality under Section 401.

Petitioners claim that for “large and complex

projects,” the decision below will force states to either

“render premature certifications without an adequate

record or analysis, or . . . reflexively deny certification

requests until a certification decision is possible.” Pet.

24. The argument is incorrect. In complex applications

involving federally licensed hydroelectric dams, FERC’s

default integrated licensing process (ILP) provides

extensive time for consultation and study with state

agencies on water quality related issues prior to the

time that a certification request is filed. 18 C.F.R. Part

5. For hydroelectric re-licensing, the ILP begins no less

than five years prior to license expiration. 18 C.F.R.

§ 5.5(d). The ILP provides opportunities for state

certification agencies to consult, comment, request

studies, and seek water quality related information

shortly after the ILP begins, and this process continues

through the filing of the re-license application. 18

C.F.R. §§ 5.8-5.22. Under FERC’s existing process,

significant work relating to water quality certification

occurs before the first certification request is filed,

leaving one additional year for the state to finalize its

decision to issue certification with conditions or deny

certification.

Amici states concede that “[m]ost requests for water

quality certification by States can be, and are,

approved or denied well within the one-year timeframe

set forth in Section 401.” Brief of Amici Curiae in

Support of Petitioners, at 9. If a state cannot make a

18

final decision on a certification request within one-year

without additional information, it has the option under

Section 401 to deny the application. In addition to the

ILP, states could also develop their own pre-filing

requirements to provide additional time to

prospectively evaluate issues relating to upcoming

certification requests.

Nor does the D.C. Circuit decision frustrate states’

ability to enter into cooperative settlement agreements.

In the re-licensing of hydroelectric dams, FERC’s

existing process begins five years prior to license

expiration, which provides adequate time to negotiate

comprehensive re-licensing settlements. Nor is there

any reason why a settlement could not be negotiated

following the issuance of certification or following a

denial of certification without prejudice. Petitioners’

argument that the decision below will impair

settlement is unsupported speculation.

Nor does the D.C. Circuit decision threaten the

KHSA or efforts to remove the dams from the Klamath

River. The KHSA was substantially amended in 2016

due to the failure to satisfy its preconditions, including

federal funding approval. Pet. App. 6a. The “Amended

KHSA” created an alternative proposal for

decommissioning, not dependent on Congressional

approval, which is currently pending before FERC. Id.

The decision below does not address the Amended

KHSA or the transfer and surrender proposed by that

new agreement. ODEQ has already issued a final

water quality certification under Section 401 relating

to the Amended KHSA’s decommissioning proposal.

19

The decision whether to approve the transfer and

surrender proposal remains pending before FERC.

Arguments regarding the potential application of

the decision below to other pending certification

requests provide no valid basis to grant certiorari. The

decision below addresses a potentially unique factual

situation where state certification agencies explicitly

committed to not process current and future

certification requests pursuant to an agreement with

the applicant. The set of facts presented in the decision

below constituted a clear failure and refusal by the

states to act on a certification request.

Facts in other pending proceedings may vary, in

some cases significantly, from those addressed by the

D.C. Circuit below. For example, the D.C. Circuit

expressly declined to resolve the different situation

where an applicant withdraws and resubmits a wholly

new or materially different certification request in its

place. Pet. App. 12a. Nor did the D.C. Circuit address

the situation where an applicant unilaterally

withdraws a certification request without involvement

by or coordination with a state. Id. Other fact patterns

may differ significantly from the specific facts

addressed by the D.C. Circuit, which addressed the

situation where a state and applicant expressly agree

to a coordinated scheme by which the state commits to

not process the certification request while the applicant

withdraws and resubmits the exact same application

for the purpose of avoiding a waiver finding. Id. Here,

the states’ own conduct constituted an express refusal

or failure to act. While different facts in a future case

20

might present a closer question, that is no basis to

grant certiorari here.

Even if waiver is found to occur in another

proceeding, that does not mean that the specific project

will be exempt from water quality standards or other

protective conditions; rather, it only means that states

will forego their mandatory conditioning authority

under Section 401 due to their failure or refusal to act

within the one-year time period mandated by Congress.

If a state’s mandatory conditioning authority under

Section 401 is waived, FERC retains the ability, and

has an independent legal obligation, to include

conditions protective of water quality in a federal

license. 16 U.S.C. § 797(e); 16 U.S.C. § 803(a)(1).

FERC must consider state agencies’ recommendations

related to license issuance and conditions, which can

include water quality protective conditions. 16 U.S.C.

§ 803(a)(2). See, e.g., FPL Energy Maine Hydro LLC,

139 FERC 61215, P 15 (2012) (including in federal

license conditions from waived Section 401

certification).

III.

The D.C. Circuit Decision

Federal Jurisdiction to

Hydroelectric Development.

Preserves

Regulate

The coordinated withdrawal-and-resubmission

scheme at issue in this case, where the states and the

applicant agreed that the Section 401 certification

requests would not be processed and the applicant

would simply re-file the exact same request each year

for the sole purpose of avoiding waiver, has serious

adverse consequences for the environment and the

public interest in the context of hydroelectric dam re-

21

licensing under the Federal Power Act. In ruling such

a scheme unlawful, the D.C. Circuit decision prevents

the impairment of FERC’s jurisdiction to regulate

hydropower developments on our nation’s waters.

Upon re-licensing at FERC, a hydroelectric project

is not only required to comply with the terms of a

timely issued water quality certification, but is also

required to comply with the many conditions required

under Sections 4(e), 10(a), 10(j), and 18 of the Federal

Power Act, as well as other applicable requirements of

federal law. City of Tacoma v. FERC, 460 F.3d 53, 7374 (D.C. Cir. 2006); 16 U.S.C. §§ 797(e); 803(a), (j), 811.

But until the re-licensing proceeding concludes or a

new license is issued by FERC, FERC must allow the

existing project to continue operating on annual

licenses that contain the terms and conditions of the

expired license, which was generally issued thirty to

fifty years prior. 16 U.S.C. § 808(a)(1). In some cases,

like here, the delay in water quality certification

following license expiration extends for more than a

decade. Pet. App. 11a.

Delay pending re-licensing of an existing

hydroelectric project harms the public interest in

ensuring that projects meet current requirements of

federal law. Delay in re-licensing is advantageous to

the project owner who can continue to operate and

generate profits from its existing hydroelectric

development for additional years on an expired license

without the need to upgrade or modify the project to

comply with current federal environmental laws and

mitigation requirements. This dynamic, in which the

project owner benefits from delay resulting from a

22

withdrawal-and-resubmission scheme, likely impedes

rather than promotes timely and effective re-licensing

settlements. With certainty, it is harmful to water

quality and environmental protection. The decision

below properly holds that such a coordinated scheme of

withdrawal-and-resubmission between a state and

applicant is unlawful under the plain language of

Clean Water Act Section 401. 33 U.S.C. § 1341(a)(1).

Absent a finding of waiver, the coordinated scheme

of withdrawal-and-resubmission at issue in this case

unlawfully deprives FERC of the jurisdiction granted

to it by the Federal Power Act. In this case, the states

and applicant agreed to an abeyance of state

certification activities for a period of years which was

implemented through the withdrawal-andresubmission of certification requests. If such a

withdrawal-and-resubmission scheme were lawful,

states could hold certification proceedings (and thus

federal licensing proceedings) in abeyance potentially

forever. Absent the states’ issuance of certification or

a finding of waiver, FERC would be forever deprived of

its jurisdiction to issue a new license with new

appropriate terms and conditions. At the same time, in

a re-licensing, FERC would be required by the Federal

Power Act, 16 U.S.C. § 808(a)(1), to allow the existing

project to continue operating on terms of its expired

license even though that same project would be

required to meet current federal law requirements

upon the conclusion of re-licensing. In federal relicensing, delay in issuing water quality certification

prevents timely mitigation of impacts of existing

projects.

23

Congress provided states with significant authority

to protect water quality within their state in Clean

Water Act Section 401. But Congress did not intend

states to use Section 401 to delay federal licensing or to

deprive FERC or other federal licensing authorities of

their regulatory jurisdiction. The “purpose of the

waiver provision [in Section 401] is to prevent a state

from indefinitely delaying a federal licensing

proceeding by failing to issue a timely water quality

certification under Section 401.” Alcoa, 643 F.3d at

972. Congress, in Section 401, gave states authority to

issue or deny certification within a specific one-year

time frame. 33 U.S.C. § 1341(a)(1). Section 401

provides no procedure for a state to toll or extend the

one-year maximum timeframe mandated by Congress.

Id.

The EPA recently promulgated proposed rules

regarding Section 401 certification, which are

consistent with the D.C. Circuit decision below. 84

Fed. Reg. 44080 (August 22, 2019). The EPA is the

federal agency charged with administration of the

Clean Water Act. Pet. App. 11a. Consistent with the

D.C. Circuit decision below, EPA’s proposed rule

provides that states are “not authorized to request the

project proponent to withdraw a certification request or

to take any other action for the purpose of modifying or

restarting the established reasonable period of time,”

which EPA confirms as being not more than one year.

84 Fed. Reg. 44080, 44120 (proposed rule § 121.4(e),

(f)). The interpretation of Section 401 in EPA’s

proposed rule is also consistent with EPA’s current

regulatory interpretation of Section 401. 40 C.F.R.

§ 121.16; Pet. App. 11a.

24

The position advocated by Petitioners and their

amici is inconsistent with the Clean Water Act, Federal

Power Act, environmental protection, and the public

interest. Review of the D.C. Circuit decision by this

Court is not warranted. The Petition for Writ of

Certiorari should be denied.

IV.

The D.C. Circuit Ruled Correctly On The

Merits.

The decision below was correctly decided.

Petitioners agree that waiver occurs if the state fails or

refuses to act on a certification request within a

reasonable period of time (which shall not exceed one

year). 33 U.S.C. § 1341(a)(1). That is exactly what

happened here. The D.C. Circuit, in its decision below,

focused on the states’ express agreement to not process

certification requests for a period of years – and

potentially forever. Pet. App. 10a-14a.

While the statute does not define ‘failure to act’

or ‘refusal to act,’ the states’ efforts, as dictated

by the KHSA, constitute such failure and refusal

within the plain meaning of these phrases.

Section 401 requires state action within a

reasonable period of time, not to exceed one

year. California and Oregon’s deliberate and

contractual idleness defies this requirement. By

shelving water quality certifications, the states

usurp FERC’s control over whether and when a

federal license will issue. Thus, if allowed, the

withdrawal-and-resubmission scheme could be

used to indefinitely delay federal licensing

25

proceedings and undermine FERC’s jurisdiction

to regulate such matters.

Id. at 12a-13a.

Petitioners and their amici mischaracterize the D.C.

Circuit’s opinion and attempt to shift the focus to the

applicant’s conduct, suggesting that the conduct of an

applicant should not be attributed to a state for

purposes of a waiver finding. But the D.C. Circuit

focused not on the applicant’s conduct but rather on the

states’ coordination and express agreement with the

applicant to not process the pending or future

certification requests. Id. at 10a-14a. It was the

states, through their own conduct here, that failed and

refused to act on the requests. Id.

Nor does the decision below undermine state

authority to protect water quality under Section 401.

States’ authority to veto or condition projects that could

impair water quality remains in full effect. States may

not, however, refuse to implement their authority

through a scheme that prevents completion of the

federal licensing proceeding.

26

CONCLUSION

The writ for petition of certiorari should be denied.

Respectfully submitted,

THANE D. SOMERVILLE

Counsel of Record

THOMAS P. SCHLOSSER

MORISSET, SCHLOSSER, JOZWIAK &

SOMERVILLE APC

811 First Avenue, Suite 218

Seattle, WA 98104

(206) 386-5200

t.somerville@msaj.com

Counsel for Respondent

Hoopa Valley Tribe