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, ET AL., PETITIONERS,

v.

HOOPA VALLEY TRIBE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

TROUTMAN SANDERS LLP

One North Wacker Drive

Suite 2905

Chicago, Illinois 60606

(312) 759-5947

misha.tseytlin@

troutman.com

CHARLES R. SENSIBA

MORGAN M. GERARD

TROUTMAN SANDERS LLP

401 9th Street NW

Suite 1000

Washington, DC, 20004

Attorneys for Respondent-Intervenor PacifiCorp

QUESTION PRESENTED

Whether a State can indefinitely avoid

“waiv[ing]” its “period of time” to review a “request for

certification” under Section 401 of the Clean Water

Act, 33 U.S.C. § 1341(a)(1), by requiring the regulated

party

to

withdraw-and-resubmit

the

same

certification request before the statutory one-year

maximum for the State’s review expires.

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, RespondentIntervenor PacifiCorp states that all outstanding

shares of PacifiCorp’s common stock are held

indirectly by Berkshire Hathaway Energy Company,

which is a direct subsidiary of Berkshire Hathaway,

Inc. The shares of Berkshire Hathaway, Inc. are

publicly traded on the New York Stock Exchange.

None of the intermediary companies holding

PacifiCorp’s stock are publicly held.

iii

TABLE OF CONTENTS

Page

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

CORPORATE DISCLOSURE STATEMENT ........... ii

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

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

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

REASONS FOR DENYING THE PETITION..........13

I.

Given That The D.C. Circuit’s Decision

Below Is The First Case To Have Decided

The

Question

Presented,

Further

Percolation Is Plainly Warranted ..................13

II. The

Policy

Arguments

Raised

By

Petitioners And Amici States Do Not Justify

Premature Review Of This Splitless Issue ....20

III. The D.C. Circuit’s Decision Is Correct ...........26

CONCLUSION ..........................................................28

iv

TABLE OF AUTHORITIES

Cases

AES Sparrows Point LNG, LLC v. Wilson,

589 F.3d 721 (4th Cir. 2009)......................... 14, 23

Bond v. United States,

134 S. Ct. 2077 (2014)......................................... 20

Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019)......................................... 19

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

Envtl. Conservation,

868 F.3d 87 (2d Cir. 2017) ............................ 15, 16

McCray v. New York,

461 U.S. 961 (1983) ............................................. 19

Millennium Pipeline Co. v. Seggos,

860 F.3d 696 (D.C. Cir. 2017) ............................... 3

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

884 F.3d 450 (2d Cir. 2018) .................... 12, 14, 15

PUD No. 1 of Jefferson Cty. v. Washington Dep’t

of Ecology,

511 U.S. 700 (1994) ....................................... 20, 24

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ............................................. 24

S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,

547 U.S. 370 (2006) ......................................... 3, 24

v

Snoqualmie Indian Tribe v. FERC,

545 F.3d 1207 (9th Cir. 2008)............................. 25

State of Cal. ex rel. State Water Res. Control Bd.

v. FERC,

966 F.2d 1541 (9th Cir. 1992)............................. 16

Statutes and Rules

16 U.S.C. § 791a ......................................................... 3

16 U.S.C. § 797 ..................................................... 3, 24

16 U.S.C. § 808 ........................................................... 5

16 U.S.C. § 825l .................................................. 18, 19

33 U.S.C. § 1341 ................................................ passim

86 Stat. 877 (1976) ..................................................... 3

Supreme Court Rule 10 ........................................... 15

Regulations

18 C.F.R. § 4.34 .................................................... 3, 16

18 C.F.R. § 5.14 ........................................................ 22

18 C.F.R. § 5.15 ........................................................ 22

18 C.F.R. § 5.18 ........................................................ 22

18 C.F.R. § 5.22 ........................................................ 22

18 C.F.R. § 5.23 ........................................................ 22

vi

18 C.F.R. § 5.5 .......................................................... 22

18 C.F.R. § 5.6 .......................................................... 22

18 C.F.R. § 5.8 .......................................................... 22

18 C.F.R. § 5.9 .......................................................... 22

18 C.F.R. § 385.214 .................................................. 18

Administrative Decisions

Constitution Pipeline Co.,

168 FERC ¶ 61,129, 2019 WL 4072374 (Aug.

28, 2019) .............................................................. 18

FPL Energy Maine Hydro LLC,

139 FERC ¶ 61215, 2012 WL 2135749 (2012) ... 25

Gustavus Elec. Co.,

109 FERC ¶ 61,105, 2004 WL 2430246 (2004) .. 25

Mead Corp.,

76 FERC ¶ 61,352, 1996 WL 555654 (1996) ...... 24

Nat’l Fuel Gas Supply Corp. Empire Pipeline,

167 FERC ¶ 61,007, 2019 WL 1981663 (Apr.

2, 2019) ................................................................ 18

PacifiCorp,

155 FERC ¶ 61,271 (June 16, 2016) .................... 7

PacifiCorp,

162 FERC ¶ 61,236 (Mar. 15, 2018) ..................... 9

vii

Placer Cty. Water Agency,

167 FERC ¶ 61,056, 2019 WL 1981750

(Apr. 18, 2019)..................................................... 18

Placer Cty. Water Agency,

169 FERC ¶ 61,046, 2019 WL 5288297 (Oct.

17, 2019) .............................................................. 19

Twin Falls Canal Co.,

45 FERC ¶ 61,423, 1988 WL 246992 (1988) ...... 24

Wis. Elec. Power Co.,

76 FERC ¶ 61,183, 1996 WL 442951 (1996) ...... 24

Other Authority

Library of Congress, S.2379 - Klamath Basin

Water Recovery and Economic Restoration Act

of 2014, https://www.congress.gov/bill/113th

-congress/senate-bill/2379 (last visited Oct. 24,

2019) ...................................................................... 8

INTRODUCTION

Before

the

Federal

Energy

Regulatory

Commission (“FERC”) may issue a federal

hydropower license, the State in which any discharge

into navigable waters originates has a “reasonable

period of time (which shall not exceed one year)” to

decide whether to issue a water-quality certification.

33 U.S.C. § 1341(a)(1). If the State does not act on a

water-quality certification “request” within that time

period, the State “waive[s]” its statutory right, and

the decision of whether to issue the hydropower

license proceeds to FERC.

In an effort to extend the statutory timeline for

certification, some States require applicants to

withdraw certification requests before the waiver

deadline and then to resubmit identical applications,

year after year, thereby purporting to restart the oneyear clock for reviewing the request. In a unanimous

opinion by Judge Sentelle, joined by Judges Griffith

and Pillard, the D.C. Circuit became the first court to

address the legality of this withdrawal-andresubmission mechanism, holding that this technique

could not extend a State’s authority to issue a

certification beyond the statutory one-year deadline.

Petitioners now ask this Court to review the D.C.

Circuit’s splitless decision but offer no persuasive

grounds for this Court to do so. Most importantly,

while Petitioners allege a circuit split, an examination

of the cases that they cite demonstrates that no other

2

court has decided this issue. Further percolation is

thus plainly warranted, and this is especially true if

Petitioners and their amici are correct about the

practical importance of this issue. While Petitioners

worry that allowing the issue to percolate will

threaten water quality because States have become

reliant

on

this

withdrawal-and-resubmission

mechanism, both the States and FERC retain ample

tools to protect water quality.

And although

PacifiCorp took no position on the legal effect of this

mechanism during the briefing before the panel, upon

review of the D.C. Circuit’s well-reasoned opinion, the

court’s textual analysis appears to be sound.

Finally, PacifiCorp wishes to emphasize its deep

and ongoing commitment to the successful

implementation of the settlement agreement that

resolves the hydroelectric relicensing proceeding at

issue in this case. No party or amicus before the D.C.

Circuit even hinted that the withdrawal-andresubmittal issue will impact the implementation of

the Klamath Hydroelectric Settlement Agreement,

either during the merits stage or the en banc petition

stage. And, in fact, the parties to the settlement,

including PacifiCorp, are continuing to engage with

FERC to fulfill their responsibilities under this

publicly beneficial Agreement.

This Court should deny the Petition.

3

STATEMENT

A. Under the Federal Power Act (“FPA”), 16

U.S.C. § 791a et seq., FERC has authority to “issue

licenses . . . for the purpose of constructing, operating,

and maintaining” hydropower projects on navigable

waters, id. § 797(e); S.D. Warren Co. v. Maine Bd. of

Envtl. Prot., 547 U.S. 370, 373 (2006); Pet. App. 4a.

Under Section 401 of the Clean Water Act, FERC may

not grant a hydropower license unless the applicant

first obtains a water-quality “certification” from the

State in which any “discharge” from the hydropower

project “originates,” or the State waives its statutory

right either affirmatively or by lack of timely action.

33 U.S.C. § 1341(a)(1); 86 Stat. 877 (1976); S.D.

Warren, 547 U.S. at 373–74; Pet. App. 4a, 23a.

Most relevant here, Section 401 provides that the

State “waive[s]” its authority to issue a Section 401

certification, thereby permitting FERC to move

forward with considering the hydropower license, “[i]f

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.” § 1341(a)(1); see 18 C.F.R. § 4.34(b)(5)(iii).

When a State waives its Section 401 certification

authority, FERC may then proceed to process the

applicant’s hydropower license application.

See

§ 1341(a); Millennium Pipeline Co. v. Seggos, 860 F.3d

696, 700 (D.C. Cir. 2017).

4

B. The Klamath Hydroelectric Project (“Klamath

Project”) comprises seven hydroelectric developments

and one non-energy-generating dam, all “located

principally on the Klamath River in Klamath County,

Oregon and Siskiyou County, California.”

Pet.

App. 22a; see Pet. App. 5a. PacifiCorp operates the

Klamath Project. Pet. App. 5a. The predecessor to

FERC, the Federal Power Commission, issued the

original 50-year license for the Klamath Project to

PacifiCorp’s predecessor in 1954. Pet. App. 5a, 22a.

In 2004, with the Klamath Project’s original

license set to expire in 2006, PacifiCorp applied for a

new license with FERC. This application proposed to

relicense most of the Klamath Project’s developments

and remove (i.e., “decommission”) the others. See Pet.

App. 5a, 22a. PacifiCorp’s application to FERC met

“[a]ll milestones for relicensing”—including FERC’s

preparation of its “Final Environmental Impact

Statement,” which recommended relicensing with

additional “environmental measures”—“except” for

the requirement of obtaining Oregon’s and

California’s Section 401 water-quality certifications.

Pet. App. 5a, 22a. Because the Klamath Project may

result in “discharge” in both Oregon and California,

both States must issue a Section 401 certification, or

waive such authority, before FERC may issue a new

license for the Klamath Project. Pet. App. 24a.

PacifiCorp’s 2004 relicense application is still pending

before FERC. See Pet. App. 4a–5a.

5

PacifiCorp has continued to operate the Klamath

Project since its original license expired in 2006,

under “annual interim licenses” from FERC. Pet.

App. 4a–5a; see 16 U.S.C. § 808(a)(1). These annual

licenses maintain the same “terms and conditions” as

the original, now-expired license, id. § 808(a)(1), and

PacifiCorp has voluntarily adopted interim

environmental measures to enhance fish habitat and

water-quality conditions while its relicensing

application is pending before FERC, Pet. App. 5a.

PacifiCorp filed its Section 401 water-quality

certification applications with California and Oregon

in 2006. Pet. App. 11a. Between that year and 2014,

PacifiCorp “withdr[ew] and refiled its application[s]

eight times,” annually submitting to both California

and Oregon a typically “one-page letter,” “indicating

withdrawal of its water quality certification request

and resubmission of the very same.” Pet. App. 11a–

12a, 24a (emphasis removed). Since 2010, PacifiCorp

took these withdrawal-and-resubmission actions

consistent with the express terms of the 2010

Klamath Hydroelectric Settlement Agreement

(“Agreement”), a settlement of PacifiCorp’s

relicensing application between Oregon and

California,

PacifiCorp,

the

United

States

Departments of the Interior and of Commerce, and

other parties. Pet. App. 12a, 24a; Agreement pp. 42,

68, 75–76, D.C. Cir. JA 383, 409, 416–17, Hoopa

Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019)

(No. 14-1271), Dkt. 1570536 (hereinafter “D.C. Cir.

6

JA”).1 In the letters it delivered each year under the

Agreement, PacifiCorp noted that its withdrawaland-resubmission was “require[d]” by the Agreement.

See Pet. App. 24a. In 2015, after FERC entered its

decision in the proceedings below, see infra pp. 9–10,

PacifiCorp

again

sent

a

withdrawal-andresubmission letter to both California and Oregon

under the Agreement.2

1 The parties to the Agreement are “the Governors of the

States of California and Oregon; PacifiCorp; the U.S.

Department of the Interior; the Department of Commerce’s

National Marine Fisheries Service; several Indian tribes (not

including the Hoopa Tribe); and a number of local counties,

irrigators, and conservation and fishing groups,” including

Petitioners. Pet. App. 22a–23a; Agreement pp. 68–76, D.C. Cir.

JA 409–17. The section of the Agreement purporting to “defer”

California’s and Oregon’s Section 401 waiver period provides as

follows: “the Parties . . . will request to [California and Oregon]

that permitting and environmental review for [the Klamath

Project] licensing activities, including . . . water quality

certification under Section 401 . . . will be held in abeyance . . . .

PacifiCorp shall withdraw and re-file its applications for Section

401 certification as necessary to avoid the certifications being

deemed waived under the [Clean Water Act] during the interim

period.” Pet. App. 5a–6a (quoting Agreement p. 42, D.C. Cir. JA

383).

See Correspondence from California State Water

Resources Control Bd. to PacifiCorp, Dec. 10, 2015,

No. 20151211-5139 (FERC Dec. 11, 2015); Correspondence from

PacifiCorp to Oregon Dep’t of Environ. Quality, Nov. 10, 2015,

No. 20151203-5180 (FERC Dec. 3, 2015); see also Brief of the

State of Oregon as Amicus Curiae Supporting Resp’t FERC at

2

7

In 2016, FERC granted PacifiCorp’s request to

hold its relicensing application in abeyance, pending

FERC’s resolution of PacifiCorp’s application to

transfer the Klamath Project license for certain

licensed developments.

PacifiCorp, 155 FERC

¶ 61,271, at ¶¶ 6–8 (June 16, 2016).3 Specifically,

PacifiCorp requested that FERC transfer PacifiCorp’s

license for four of the Klamath Project’s seven

developments to a third-party dam-removal entity,

which entity would potentially remove those four

developments under the Agreement’s terms. Id.; see

infra p. 8 n.4.

FERC has not yet approved

PacifiCorp’s

license-transfer

request,

thus

“PacifiCorp remains the licensee.” Pet. App. 6a–7a.

More broadly, the Agreement seeks “to resolve the

procedures and the risks” associated with the

proposed removal of some of the Klamath Project’s

developments. Pet. App. 5a. The Agreement contains

“a series of interim environmental measures” for

PacifiCorp to implement while it remains the licensee

pending FERC’s consideration of its proposal to

transfer part of the license for potential development

removal. Pet. App. 5a. These include monitoring

Klamath River water-quality, enhancing redband

10, Hoopa Valley Tribe, 913 F.3d 1099 (No. 14-1271), 2015 WL

7755008, at *9.

3 See also Letter filed by FERC pursuant to Fed. R. App.

P. 28(j) Advising of Additional Authorities, Hoopa Valley Tribe,

913 F.3d 1099 (No. 14-1271), Dkt. 1625832 (submitting this

abeyance order to the D.C. Circuit below).

8

trout spawning habitat, removing an upstream rock

barrier that threatened fish passage, taking fishhabitat enhancement measures, making hatchery

improvements, and conducting studies in improving

in-reservoir water-quality conditions. See D.C. Cir.

JA 836–47 (updates on status of environmental

measures implemented under the Agreement). The

Agreement “target[ed] a 2020 decommission date,”

and PacifiCorp remains committed to the successful

transfer of its license and to the removal of

developments, consistent with the protections and

cost caps provided for in the Agreement.

Pet. App. 5a–7a.4

The Agreement conditioned decommissioning of

developments on “the securing of federal funds.” Pet. App. 6a.

In 2014, Senator Wyden introduced Senate Bill 2379 to

implement this condition, which Congress did not enact. Pet.

App. 23a n.5; see Library of Congress, S.2379 - Klamath Basin

Water Recovery and Economic Restoration Act of 2014,

https://www.congress.gov/bill/113th-congress/senate-bill/2379

(last visited Oct. 24, 2019). “Consequently,” a “subset” of the

parties to the original Agreement entered into an amended

agreement creating an alternative plan for potentially removing

the four main-stem developments. See Pet. App. 6a. This

alternative plan would transfer PacifiCorp’s license for four of

the Klamath Project’s seven developments to a third-party damremoval entity, as referenced above, which entity would be

formed for purposes of implementing the Agreement. Pet. App.

6a; supra p. 7. Because FERC has not yet approved this license

transfer, PacifiCorp “remains the licensee.” Pet. App. 6a–7a; see

PacifiCorp, 162 FERC ¶ 61,236, at ¶¶ 1–2 (Mar. 15, 2018)

(deferring this licensing decision); supra p. 7.

4

9

C. In 2012, the Hoopa Valley Tribe (“Hoopa”), a

federally recognized tribe that is not a signatory of the

Agreement, petitioned FERC for a declaratory order

“find[ing] that PacifiCorp has failed to diligently

pursue relicensing” of the Klamath Project and

requiring PacifiCorp “to file a plan for

decommissioning the project” with FERC.

Pet.

App. 24a. Alternatively, Hoopa asked FERC to “find

that California and Oregon had waived water quality

certification” under Section 401 and to “issue a new

license” for the Klamath Project without these state

certifications. Pet. App. 24a.

FERC denied Hoopa’s petition in June 2014 and

its request for rehearing in October 2014. Pet.

App. 21a, 30a. FERC concluded that it “cannot issue

and implement a new license” for the Klamath Project

“until water quality certification [under Section 401]

has been issued” by California and Oregon. Pet.

App. 25a. FERC determined that California and

Oregon had not waived Section 401 certification by

failing to act within one year on PacifiCorp’s

application because PacifiCorp had “repeatedly”

withdrawn “its applications before a year ha[d]

passed.” Pet. App. 39a–40a. Despite disagreement

with Hoopa about the meaning of Section 401, FERC

“agree[d] with the Tribe that the circumstances of this

case are far from ideal,” and that this “inordinate

delay was hardly what Congress contemplated in

crafting the one-year certification deadline” in Section

401. Pet. App. 25a, 28a (citations omitted).

10

D. Hoopa petitioned the D.C. Circuit for review of

FERC’s denial, and the D.C. Circuit reversed, in a

unanimous panel opinion written by Judge Sentelle,

joined by Judges Griffith and Pillard. Pet. App. 3a.

The D.C. Circuit explained that “[r]esolution of

this case require[d] [it] 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 withdrawsand-resubmits its request for water quality

certification over a period of time greater than one

year.” Pet. App. 10a. Resolving this issue was an

“undemanding inquiry because Section 401’s text is

clear”: “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).’” Pet. App. 10a–11a (quoting § 1341(a)(1)).

“Thus . . . a full year is the absolute maximum” for a

State to make a decision on a Section 401 application.

Pet. App. 11a.

Here, California and Oregon did not act on

PacifiCorp’s Section 401 requests within one year,

meaning that they waived their statutory authority.

Pet. App. 11a–12a, 14a. PacifiCorp “first filed” its

Section 401 requests with California and Oregon “in

2006.” Pet. App. 11a. It then annually withdrew-andrefiled those requests for four years prior to signing

the Agreement in 2010, with neither California nor

Oregon acting on the requests during this years-long

period. See Pet. App. 6a, 11a–12a. PacifiCorp then

11

entered into the Agreement in 2010, which, among

other things, purported “to delay water quality

certification” by requiring PacifiCorp to continue to

withdraw-and-resubmit its requests annually.

Pet. App. 10a–12a. PacifiCorp complied with this

requirement,

withdrawing-and-resubmitting

its

requests each year under the Agreement. See Pet.

App. 10a–12a. Every one of PacifiCorp’s withdrawnand-resubmitted “requests” were “not new requests at

all”—indeed, the “withdrawal of its water quality

certification request and resubmission of the very

same” were accomplished “in the same one-page letter

. . . for more than a decade.” Pet. App. 12a (ellipsis in

original). Since “[t]he pendency of the requests for

state certification in this case has far exceeded the

one-year maximum,” the court held that “California

and Oregon have waived their Section 401 authority

with regard to the Project.” Pet. App. 11a, 14a.

In reaching its holding, the D.C. Circuit

recognized that “the statute’s reference ‘to act on a

request for certification’” refers “to a specific request,”

such that “the period of review for one request

[cannot] affect[ ] that of any other request.” Pet.

App. 11a–12a (quoting § 1341(a)(1)). Here, however,

the “record does not indicate that PacifiCorp

withdrew its request and submitted a wholly new one

in its place.” Pet. App. 12a. Rather, the requests

“were not new requests at all.” Pet. App. 12a.

Accordingly, the court did not need to “determine how

different a request must be to constitute a ‘new

request’ such that it restarts the one-year clock.” Pet.

12

App. 12a. The “withdrawals-and-resubmissions . . .

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.” Pet. App. 12a.

Finally, the court distinguished New York State

Department of Environmental Conservation v. FERC,

884 F.3d 450 (2d Cir. 2018), “which suggested, in light

of various practical difficulties, that a state could

‘request that the applicant withdraw and resubmit

the application.’” Pet. App. 13a–14a (quoting N.Y.

State Dep’t, 884 F.3d at 455–56). That “suggestion”

was “dicta, offered to rebut the state agency’s fears

that a one-year review period could result in

incomplete applications and premature decisions.”

Pet. App. 14a. And “[w]hile it is the role of the

legislature, not the judiciary, to resolve such fears,

those trepidations are inapplicable to the instant

case” since the “record indicates that PacifiCorp’s

water quality certification request has been complete

and ready for review for more than a decade.” Pet.

App. 14a.

The D.C. Circuit denied the petition for panel

rehearing and rehearing en banc. Pet. App. 17a–20a.

13

REASONS FOR DENYING THE PETITION

I.

Given That The D.C. Circuit’s Decision

Below Is The First Case To Have Decided

The

Question

Presented,

Further

Percolation Is Plainly Warranted

A. The D.C. Circuit is the first court to address the

Question Presented: whether a State may indefinitely

avoid waiver under Section 401 by requiring an

applicant to withdraw-and-resubmit its certification

request before the expiration of the one-year statutory

maximum for Section 401 certification waiver. The

D.C. Circuit concluded that such a “withdrawal-andresubmission scheme,” Pet. App. 10a, does not avoid

“waiv[ing]” the State’s “period of time” to act on a

Section 401 application, 33 U.S.C. § 1341(a)(1). No

other court has ruled on this issue.

Petitioners conceded as much in their petition for

panel rehearing or rehearing en banc, where they

stated only that the D.C. Circuit’s decision “portends

conflicts with” other courts, without alleging any

actual conflict. Pet. For Panel Reh’g or Reh’g En

Banc at 4, Hoopa Valley Tribe, 913 F.3d 1099 (No. 141271), Dkt. 1777034. Now, however, Petitioners

claim that the decision below “deepened an existing

circuit conflict.” Pet. 4, 16. None of the cases that

Petitioners rely upon decided the issue, and none

conflict with the D.C. Circuit’s decision below.

14

The Fourth Circuit’s decision in AES Sparrows

Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir.

2009), Pet. 17–18, does not address the Question

Presented. There, the Fourth Circuit held that only

the filing of a “valid” Section 401 certification

application begins the State’s waiver period under

Section 401, meaning that an “invalid,” incomplete

application did not start the waiver clock. 589 F.3d at

728–30. Whether an invalid application starts the

Section 401 clock does not answer the question that

the D.C. Circuit addressed: whether a State may

defer waiver under Section 401 through the

withdrawal-and-resubmission procedure, when all

agree that the application is valid and complete when

originally submitted and that the only change is the

withdrawal-and-resubmission of the exact same

application.

See Pet. App. 14a (noting that

PacifiCorp’s application has been “complete and ready

for review for more than a decade”).

The Second Circuit’s decision in New York State

Department of Environmental Conservation v. FERC,

884 F.3d 450 (2d Cir. 2018), Pet. 18, likewise did not

decide the Question Presented. There, the Second

Circuit held that a State’s period to act on a Section

401 application begins to run when the State first

“receives a request,” even if the State (erroneously)

believes that the request is not “complete.” N.Y. State

Dep’t, 884 F.3d at 455–56. The court then held that

the State had waived its Section 401 authority by

purporting to deny an applicant’s request over two

years after its initial submission, although that

15

submission was, in the State’s view, incomplete. See

id. at 453–54. After reaching its holding, the Second

Circuit noted in dicta that if a State were to conclude

that an application was “incomplete,” the State could

“simply deny the application without prejudice” or

“request that the applicant withdraw and resubmit

the application.” Id. at 456.

The Second Circuit’s holding does not address the

Question Presented at all, as New York State

Department of Environmental Conservation did not

involve a withdraw-and-resubmit regime at all. See

Pet. App. 14a. And the Second Circuit’s dicta only

refers to an applicant resubmitting a “complete”

application after withdrawing an “incomplete[ ]” one.

See 884 F.3d 455–56. That does not relate to a State

prolonging waiver by requiring withdrawal-andresubmission of an identical, complete application,

like the case here. Indeed, the application here “has

been complete and ready for review for more than a

decade.” Pet. App. 14a. Regardless, a court’s dicta is

not a “decision” by the court “in conflict with” the D.C.

Circuit below. Sup. Ct. R. 10(a).

The Second Circuit’s decision in Constitution

Pipeline Co. v. New York State Department of

Environmental Conservation, 868 F.3d 87 (2d Cir.

2017), Pet. 19, similarly did not decide the Question

Presented. That decision simply observed the fact

that the withdrawal-and-resubmission procedure had

occurred there—it did not state, let alone hold, that

this procedure lawfully expanded the one-year waiver

16

maximum under Section 401. Constitution Pipeline,

868 F.3d at 94, 100. Indeed, Constitution Pipeline did

not even address the merits of the Section 401

timeliness issue presented there, since the court

concluded that it lacked jurisdiction. Id. at 100.

Finally, Petitioners cite in a footnote the Ninth

Circuit’s decision in State of California ex rel. State

Water Resource Control Board v. FERC, 966 F.2d

1541 (9th Cir. 1992), which, as Petitioners concede,

also “d[oes] not address” the Question Presented.

Pet. 19 n.6. This decision held that the State had

waived its Section 401 authority by failing to act

within a year of receiving an applicant’s Section 401

request, although the State had never formally

“accepted this request for processing.” California, 966

F.2d at 1552. The court explained that while previous

FERC procedures commenced “the one-year waiver

period” when “the certifying agency found the request

acceptable for processing,” current FERC procedures

commence the period when the State simply receives

the request.

See id. at 1552–53; 18 C.F.R.

§ 4.34(b)(5)(iii). Under those current procedures, the

court held that the State had waived its Section 401

authority. California, 966 F.2d at 1554. The court

rejected the State’s arguments that the new FERC

procedures were invalid for lack of comment under

the APA and that they could not apply retroactively.

See id. at 1553–54. The Ninth Circuit’s decision is

irrelevant since there is no dispute here that

California and Oregon have received PacifiCorp’s

Section 401 applications. See Pet. App. 14a.

17

B. Petitioners’ claimed fear of “forum-shopping”

does not justify this Court’s premature review of this

splitless issue. Pet. 21–22. A party seeking to

challenge a withdrawal-and-resubmission regime

would, of course, be better off in the D.C. Circuit

because it is the only court to have decided the issue.

But, for the same reason, parties seeking to defend

the withdrawal-and-resubmission scheme would, all

other things being equal, wish to avoid the D.C.

Circuit. Pet. App. 14a. In the only example of alleged

forum shopping that Petitioners raise, N.Y. State

Dep’t of Envtl. Conservation v. FERC, No. 19-1610 (2d

Cir. filed May 28, 2019), Pet. 22, both the New York

Department of Environmental Conservation and the

Sierra Club opposed the transfer motion filed by the

pipeline company, and the Second Circuit denied the

transfer request.

See Order Denying Mot. to

Transfer, N.Y. State Dep’t of Envtl. Conservation, No.

19-1610, Dkt. 108.

None of the parties even

mentioned the D.C. Circuit’s decision below in their

transfer papers.5 But, in any event, assuming that

Petitioners are correct that the Question Presented is

at issue in that case, the Second Circuit now may have

5 See Intervenors’ Mot. to Transfer, N.Y. State Dep’t of Envtl.

Conservation, No. 19-1610, Dkt. 47 (2d Cir. June 27, 2019);

Opp’n of Pet’r N.Y. State Dep’t of Envtl. Conservation, N.Y. Dep’t

of Envtl. Conservation, No. 19-1610, Dkt. 62-1 (2d Cir. July 8,

2019); Pet’r Sierra Club’s Opp’n, N.Y. State Dep’t of Envtl.

Conservation, No. 19-1610, Dkt. 63 (2d Cir. July 8, 2019);

Intervenors’ Reply in Supp. of Mot. to Transfer, N.Y. State Dep’t

of Envtl. Conservation, No. 19-1610, Dkt. 76 (2d Cir. July 15,

2019).

18

the opportunity to address the matter, potentially

kicking off the percolation process, as other courts

begin to consider the D.C. Circuit’s reasoning on this

issue.

Petitioners’ forum shopping allegation highlights

a more general and important point: because any

aggrieved party to these kinds of FERC proceedings,

such as amici States or Petitioners and their allies,

“may obtain review . . . in the United States court of

appeals for any circuit wherein the licensee or public

utility . . . is located or has its principal place of

business, or in the United States Court of Appeals for

the District of Columbia”—percolation is exceedingly

likely to occur in the not-too-distant future. 16 U.S.C.

§ 825l(b) (emphases added); 18 C.F.R. § 385.214(a)(2)

(granting States and other entities with Section 401

authority the right to intervene in FERC

proceedings). Amici States, for example, cite three

cases where they are concerned about FERC’s recent

actions in this area. See Brief of State of Oregon et al.

as Amici Curiae Supporting Pet’rs at 16–19, No. 19257 (Sept. 27, 2019) (“States’ Amicus Br.”). Those

cases arise from projects in New York, see

Constitution Pipeline Co., 168 FERC ¶ 61,129, 2019

WL 4072374 (Aug. 28, 2019); Nat’l Fuel Gas Supply

Corp. Empire Pipeline, 167 FERC ¶ 61,007, 2019 WL

1981663 (Apr. 2, 2019), and California, see Placer Cty.

Water Agency, 167 FERC ¶ 61,056, 2019 WL 1981750

(Apr. 18, 2019). And both Petitioners and amici

States claim that this issue is arising in many cases

before FERC, with both Petitioners and amici States

19

suggesting that they believe FERC to be taking too

broad a view of the D.C. Circuit’s rationale, meaning

that factual or legal distinctions and nuances abound.

Pet. 26–28; States’ Amicus Br. 16–19. That is a sure

recipe for beneficial percolation, as aggrieved parties

challenge these FERC decisions in courts across the

country.

Indeed, subsequent to amici States’

submission of their brief, FERC denied rehearing in

Placer County, thus potentially allowing additional

judicial review of this issue. See Placer Cty. Water

Agency, 169 FERC ¶ 61,046, at ¶ 25, 2019 WL

5288297, at *6 (Oct. 17, 2019); § 825l(b).

If a square division of authority develops as a

result of this imminent percolation, this Court could

then take up this issue at that time. This would

“allow . . . the issue [to] receive[ ] further study” in the

lower courts “before it is addressed by this Court,”

McCray v. New York, 461 U.S. 961, 963 (1983)

(Stevens, J., respecting denial of certiorari), thereby

“assist[ing] [this Court’s] review of this issue of first

impression,” if such review is later deemed

warranted, Box v. Planned Parenthood of Ind. & Ky.,

Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J.,

concurring in denial of certiorari).

Relatedly, amici States’ concern that other

federal agencies, operating under different federal

licensing regimes, may apply the reasoning of the

D.C. Circuit’s decision further shows the wisdom of

permitting further percolation. States’ Amicus Br.

20–21. If amici States are correct that the D.C.

20

Circuit’s decision will implicate projects outside of the

hydropower realm, that would further underscore the

importance of permitting the lower courts to work

carefully through this issue. Again, if those courts

ultimately come to different conclusions, generating

an actual division of authority, that would be the

proper time for this Court to grant review.

II. The Policy Arguments Raised By Petitioners

And Amici States Do Not Justify Premature

Review Of This Splitless Issue

Petitioners and amici States argue that this

Court should grant review now because, in their view,

the D.C. Circuit’s decision threatens federalism,

water quality, and the fate of the Klamath Project.

Pet. 23–28; States’ Amicus Br. 5–11, 14–21. These

policy arguments do not justify premature review of

this splitless issue.

A. Petitioners’ and amici States’ concern that

permitting the D.C. Circuit’s decision to stand would

harm federalism is unfounded. Pet. 23–26; States’

Amicus Br. 5–11. There is no plausible argument that

Congress disrupted the “usual constitutional balance

of federal and state powers,” Bond v. United States,

134 S. Ct. 2077, 2089 (2014) (citations omitted), when

it gave States an important, but strictly time-limited,

“role[ ]” in this federal regulatory regime, PUD No. 1

of Jefferson Cty. v. Washington Dep’t of Ecology, 511

U.S. 700, 704 (1994). Rather, the dispute here is far

narrower: whether Congress permitted States to

21

extend the statute’s plain-text no-more-than-one-year

waiver rule by requiring applicants to withdraw-andresubmit their requests, year after year. Amici States

understandably want to keep using the mechanism—

who would not want the option to receive an indefinite

extension of an important decision deadline?—but

their disagreement with the D.C. Circuit’s statutory

conclusion hardly creates a serious federalism

problem, justifying premature review.

Further, notwithstanding amici States’ claims,

States’ Amicus Br. 9, the Clean Water Act provides

States with ample time to use their Section 401

certification authority, without resort to the

withdrawal-and-resubmission mechanism.

Most fundamentally (and, ultimately, all that

matters), Congress concluded in the statutory text

that one year is enough time for the States to act.

While Petitioners and amici States make various

arguments about how some projects are too “complex”

for the States to act on within one year, Pet. 24;

States’ Amicus Br. 9, Congress disagreed, providing

that the States must act within a “reasonable period

of time (which shall not exceed one year),”

§ 1341(a)(1). All of Petitioners’ and amici States’

arguments that a year is too short for this or that

category of project can and should be brought to

Congress, not this Court.

There is, in any event, little reason to think that

such a statutory amendment would be necessary or

22

beneficial. By the time an applicant submits a Section

401 certification request with the State, the State will

already have had years’ worth of notice that an

applicant intends to seek a hydropower license.

18 C.F.R. § 5.5(a), (c)–(d). The State will already

possess the applicant’s detailed and voluminous FPA

application—supported by years of environmental

study. E.g., id. §§ 5.6, 5.15, 5.18, 5.23(b). The State

will also have had opportunities to seek and obtain

water-quality related “information and studies” from

the applicant. Id. § 5.9 (providing that interested

government entities may submit comments on an

applicant’s pre-application document, including

“information and studies needed for . . . water quality

certification” under Section 401); see generally id.

§ 5.8–.22. And if a State is not satisfied that an

applicant’s environmental study plan will sufficiently

investigate water-quality impacts of a project, FERC’s

regulations expressly authorize the State to obtain

formal dispute resolution. Id. § 5.14. Thus, FERC

“encourage[s]” applicants “to consult with the

certifying [State] agency . . . concerning [Section 401]

information requirements as early as possible” in this

process. Id. § 5.18(b)(3)(i). That is why, as even amici

States concede, “[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.” States’ Amicus Br. 9.

Nor would complying with the no-more-than-oneyear statutory requirement force the States to

approve “[in]complete” requests. States’ Amicus

23

Br. 20–21. If a State concludes that a Section 401

request is truly incomplete, then it should deny that

request. See AES Sparrows, 589 F.3d at 725. The

applicant would then have the option of submitting a

new request—that is, one that completes the

application—and the one-year clock on that new

request will then begin. See id. at 725–26. But if the

request is complete—as all agree the request here was

complete for over a decade, Pet. App. 14a—then the

State must either make a decision by no later than a

year or waive its statutory certification right, as

Congress envisioned and provided in the statute.

B. Petitioners’ and amici States’ concerns that the

D.C. Circuit’s decision will undermine water quality

because States have used the withdrawal-andresubmission mechanism for certain extant projects,

Pet. 26–28; States’ Amicus Br. 14, 16–21, ignores: (1)

FERC’s responsibility to protect water quality while

carrying

out

its

hydropower-licensing

responsibilities, and (2) FERC’s common practice of

taking States’ water-quality concerns into account,

even where States have waived their water-quality

certification authority.

FERC has broad responsibilities to ensure that

any hydropower project that it approves satisfies all

environmental concerns. As a threshold matter,

under the National Environmental Policy Act, FERC

must “prepare detailed [environmental] impact

statements,” which require it to “take a hard look at

environmental consequences” before issuing a

24

hydropower license. Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 348–51 (1989)

(citations omitted). The FPA then mandates that

FERC “give equal consideration to the purpose of

energy conservation, the protection, mitigation of

damage to, and enhancement of, fish and wildlife

(including related spawning grounds and habitat), . . .

and the preservation of other aspects of

environmental quality,” including water quality,

when issuing licenses. 16 U.S.C. § 797(e). The FPA

further requires FERC to ensure that licensed

projects are “best adapted to a comprehensive plan for

improving or developing a waterway.” Id. § 803(a)(1).

In sum, under the FPA, FERC can grant a license only

“after a review that looks to environmental issues as

well as the rising demand for power.” S.D. Warren

Co., 547 U.S. at 373–74.

In

carrying

out

these

environmental

responsibilities, FERC takes States’ environmental

concerns into serious account, even where the State

has waived its Section 401 authority. See, e.g., Mead

Corp., 76 FERC ¶ 61,352, 1996 WL 555654, at *1 n.2

*4–5 (1996); Wis. Elec. Power Co., 76 FERC ¶ 61,183,

1996 WL 442951, at *1, *3–4 (1996); Twin Falls Canal

Co., 45 FERC ¶ 61,423, 1988 WL 246992, at *4 (1988).

As this Court has explained, “it is quite possible . . .

that any FERC license would contain the same

conditions as the state § 401 certification” after FERC

exercises its independent authority. PUD No. 1, 511

U.S. at 722.

Under this policy, FERC has

independently required conditions such as “instream

25

flow restrictions,” “sediment transport monitoring,”

“erosion control,” and “water quality monitoring” in

hydropower licenses. E.g., Gustavus Elec. Co., 109

FERC ¶ 61,105, at ¶ 64, 2004 WL 2430246, at *13

(2004). Indeed, FERC may even impose requirements

greater than a State’s water-quality standards. See,

e.g., Snoqualmie Indian Tribe v. FERC, 545 F.3d

1207, 1219 (9th Cir. 2008). Further, “State fish and

wildlife

agencies”

may

submit

to

FERC

“recommendations” for license “conditions” for

pending projects, which is a process distinct from the

States’ Section 401 authority. 16 U.S.C. § 803(j)(1);

see, e.g., FPL Energy Maine Hydro LLC, 139 FERC

¶ 61215, at ¶ 15, 2012 WL 2135749, at *4 (2012)

(including conditions proposed by a State, although

the State had waived its Section 401 authority). This

process is designed to “adequately and equitably

protect, mitigate damages to, and enhance, fish and

wildlife . . . affected by [any hydropower] license.”

16 U.S.C. § 803(j)(1). And if FERC considers any

“recommendation” from the State to be “inconsistent

with the purposes and requirements” of federal law,

it must “attempt to resolve any such inconsistency,

giving due weight to the [State’s] recommendations.”

Id. § 803(j)(2).

C. Amici States suggest that the D.C. Circuit’s

decision threatens the successful implementation of

the Agreement, States’ Amicus Br. 15, but this

belated assertion is waived and meritless. Neither

the amici States nor any of the parties so much as

suggested below, including at the petition for en banc

26

rehearing stage, that the D.C. Circuit’s decision

would impact the Agreement in any respect.6

PacifiCorp remains committed to the successful

implementation of the Agreement, and all parties to

the Agreement have continued to engage in its

implementation, unabated, following the decision

below. See generally Agreement p. 62, D.C. Cir. JA

403 (“[I]f any provision of this Settlement is held by

. . . a court of competent jurisdiction to be invalid,

illegal, or unenforceable,” then “the validity, legality,

and enforceability of the remaining provisions of this

Settlement are not affected or impaired in any way.”).

III. The D.C. Circuit’s Decision Is Correct

While PacifiCorp did not take a position on the

withdrawal-and-resubmission procedure before the

panel below, upon reviewing the D.C. Circuit’s

careful, unanimous decision, PacifiCorp agrees that

the court’s conclusion follows from the “clear”

statutory text. Pet. App. 10a. According to that text,

6 Brief of California State Water Control Board as Amicus

Curiae Supporting Intervenors’ Petition for Panel Reh’g or Reh’g

En Banc, Hoopa Valley Tribe, 913 F.3d 1099 (No. 14-1271), 2019

WL 1277073; Brief of State of Oregon et al. as Amici Curiae in

Support of Intervenors’ Pet. for Panel Reh’g or Reh’g En Banc,

Hoopa Valley Tribe, 913 F.3d 1099 (No. 14-1271), 2019 WL

1277071; Brief of State of Washington et al. as Amici Curiae in

Support of Intervenor-Resp’ts, Hoopa Valley, 913 F.3d 1099 (No.

14-1271), Dkt. 1589071; Response of Pet’r Hoopa Valley Tribe to

Intervenors’ Pet. For Panel Reh’g or Reh’g En Banc, Hoopa

Valley Tribe, 913 F.3d 1099 (No. 14-1271), Dkt. 1783443.

27

a State “waive[s]” its authority under Section 401 if it

“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.” 33

U.S.C. § 1341(a) (emphasis added). As a matter of

plain statutory text, if an applicant withdraws-andresubmits an unchanged “request for certification”—

for example, here, reasserting the request by filing a

form letter, year after year, Pet. App. 12a—the

“request” remains the same, and the State has just

one year to act under the statute’s terms.

With all respect, Petitioners and amici States

offer no persuasive response to the D.C. Circuit’s

textual analysis. They argue that Section 401 does

not “equate[ ] an applicant’s choice to withdraw and

resubmit a request with the state’s failure or refusal

to ‘act.’” Pet. 29–30; see States’ Amicus Br. 8. Yet the

inquiry under the statutory text is not whether

withdrawal-and-resubmission occurred by the State’s

choice,7 but whether the withdrawn-and-resubmitted

“request” is the same one submitted more than a year

before. And while amici States’ urge this Court to

look to Section 401’s use of “such request,” States’

Amicus Br. 12, the withdrawn-and-resubmitted

requests here “were not new requests at all,” but were

7 Such an inquiry would be difficult in a case such as this

one, where California and Oregon entered into a “coordinated

withdrawal-and-resubmission scheme” with the applicant. Pet.

App. 14a.

28

the same “request” submitted and re-submitted, year

after year. Pet. App. 12a.

Perhaps further percolation will eventually lead

courts and/or parties to develop a sufficient textual

justification for some variant of the withdrawal-andresubmission mechanism, applicable in some yet-tobe-identified category of requests. But at least given

the statutory arguments presented here, the

D.C. Circuit’s textual analysis appears to be correct.

CONCLUSION

This Court should deny the Petition.

Respectfully submitted,

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

TROUTMAN SANDERS LLP

One North Wacker Drive

Suite 2905

Chicago, Illinois 60606

(312) 759-5947

misha.tseytlin@

troutman.com

CHARLES R. SENSIBA

MORGAN M. GERARD

TROUTMAN SANDERS LLP

401 9th Street NW,

Suite 1000

Washington, DC, 20004

October 2019