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 FOR THE FEDERAL ENERGY REGULATORY

COMMISSION IN OPPOSITION

JAMES P. DANLY

General Counsel

ROBERT H. SOLOMON

Solicitor

CAROL J. BANTA

Senior Attorney

Federal Energy Regulatory

Commission

Washington, D.C. 20426

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The Federal Energy Regulatory Commission (Commission) has authority to issue licenses for the construction, operation, and maintenance of hydroelectric projects on jurisdictional waters. See 16 U.S.C. 797(e). If

a proposed hydroelectric license “may result in any discharge into the navigable waters” of the United States,

the Clean Water Act, 33 U.S.C. 1251 et seq., requires

that the applicant provide the Commission with “a certification from the State in which the discharge originates.” 33 U.S.C. 1341(a)(1). The statute further states

that “[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, the certification requirements of this subsection shall be waived with respect to such Federal application.” Ibid. The question presented is:

Whether the court of appeals correctly determined

that California and Oregon waived water quality certification under 33 U.S.C. 1341(a)(1), where, pursuant to

a written agreement between the States and the applicant to delay certification, the applicant repeatedly

withdrew and resubmitted its certification request over

the course of more than a decade.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (D.C. Cir.):

Hoopa Valley Tribe v. Federal Energy Regulatory

Commission, No. 14-1271 (Jan. 25, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 9

Conclusion ................................................................................... 22

TABLE OF AUTHORITIES

Cases:

AES Sparrows Point LNG, LLC v. Wilson,

589 F.3d 721 (4th Cir. 2009) ............................................... 17

Alcoa Power Generating Inc. v. FERC,

643 F.3d 963 (D.C. Cir. 2011) ..................................... 3, 7, 11

City of Tacoma v. FERC, 460 F.3d 53

(D.C. Cir. 2006) ..................................................................... 3

Constitution Pipeline Co.:

162 F.E.R.C. ¶ 61,014 (2018) .................................... 11, 14

168 F.E.R.C. ¶ 61,129 (2019) .................................... 13, 15

Hoopa Valley Tribe v. FERC, 629 F.3d 209

(D.C. Cir. 2010) ................................................................... 14

Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) ................. 3

Klamath Water Users Ass’n v. FERC,

534 F.3d 735 (D.C. Cir. 2008) ............................................... 4

National Fuel Gas Supply Corp.:

164 F.E.R.C. ¶ 61,084 (2018) .......................................... 16

167 F.E.R.C. ¶ 61,007 (2019) .......................................... 16

New York State Dep’t of Envtl. Conservation v.

FERC, 884 F.3d 450 (2d Cir. 2018) ......................... 9, 17, 18

Placer County Water Agency,

167 F.E.R.C. ¶ 61,056 (2019) ............................................. 15

PUD No. 1 v. Washington Dep’t of Ecology,

511 U.S. 700 (1994)................................................................ 3

(III)

IV

Case—Continued:

Page

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

547 U.S. 370 (2006).......................................................... 2, 10

Statutes and regulations:

Administrative Procedure Act,

5 U.S.C. 701 et seq.:

5 U.S.C. 701 ...................................................................... 17

5 U.S.C. 706 ...................................................................... 17

Clean Water Act, 33 U.S.C. 1251 et seq.:

33 U.S.C. 1251(d) ............................................................. 22

33 U.S.C. 1341(a)(1) (§ 401) ................................... passim

33 U.S.C. 1341(d) ............................................................... 3

Federal Power Act, 16 U.S.C. 791a et seq. ............................ 2

16 U.S.C. 797(e) ................................................................. 2

16 U.S.C. 808(a)(1) (§ 401) ................................................ 2

16 U.S.C. 808(e) ................................................................. 2

Federal Water Pollution Control Act,

33 U.S.C. 1251 et seq. .......................................................... 19

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 816 .............................. 19

18 C.F.R. 16.18 ................................................................... 2, 14

40 C.F.R.:

Pt. 121 ............................................................................... 19

121.4(a) ........................................................................ 20

121.4(e) ........................................................................ 20

121.4(f ) ........................................................................ 21

Miscellaneous:

115 Cong. Rec. 9264 (1969) ................................................... 11

V

Miscellaneous—Continued:

Page

Envtl. Prot. Agency, Clean Water Act Section 401

Guidance for Federal Agencies, States and

Authorized Tribes (June 7, 2019), https://www.epa.

gov/sites/production/files/2019-06/documents/cwa_

section_401_guidance.pdf .................................................. 20

Exec. Order No. 13,868, 84 Fed. Reg. 15,495

(Apr. 15, 2019) ............................................................... 19, 20

36 Fed. Reg. 22,487 (Nov. 25, 1971) ..................................... 19

Updating Regulations on Water Quality

Certification, 84 Fed. Reg. 44,080

(Aug. 22, 2019) ................................................... 13, 19, 20, 21

In the Supreme Court of the United States

No. 19-257

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 FOR THE FEDERAL ENERGY REGULATORY

COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a)

is reported at 913 F.3d 1099. The orders of the Federal

Energy Regulatory Commission (Pet. App. 21a-42a) are

reported at 147 F.E.R.C. ¶ 61,216 and 149 F.E.R.C.

¶ 61,038.

JURISDICTION

The judgment of the court of appeals was entered on

January 25, 2019. A petition for rehearing was denied

on April 26, 2019 (Pet. App. 17a-20a). On July 23, 2019,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including August

26, 2019, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

STATEMENT

1. The Federal Power Act, 16 U.S.C. 791a et seq.,

provides the Federal Energy Regulatory Commission

(FERC or Commission) with the authority to issue licenses for the construction, operation, and maintenance

of hydroelectric projects on jurisdictional waters.

16 U.S.C. 797(e). The Commission may issue hydroelectric licenses for up to 50 years. See 16 U.S.C. 808(e).

In deciding whether to issue or reissue a license, the

Commission is required to consider “the power and development purposes for which licenses are issued,” and

to “give equal consideration to the purposes of energy

conservation, the protection, mitigation of damage to,

and enhancement of, fish and wildlife * * * , the protection of recreational opportunities, and the preservation of other aspects of environmental quality.”

16 U.S.C. 797(e). If a new license is not granted prior

to the expiration of an existing license, the Commission

may issue to the licensee an annual license to operate

the project from year to year, “under the terms and conditions of the existing license until * * * a new license

is issued.” 16 U.S.C. 808(a)(1); see 18 C.F.R. 16.18.

If a proposed hydroelectric or other federal license

“may result in any discharge into the navigable waters”

of the United States, Section 401 of the Clean Water Act

mandates that the applicant “provide the licensing or

permitting agency a certification from the State in

which the discharge originates or will originate * * *

that any such discharge will comply with” certain provisions of the Clean Water Act. 33 U.S.C. 1341(a)(1); see

S. D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S.

370, 373 (2006) (holding that “operating a dam to produce hydroelectricity ‘may result in any discharge into

the navigable waters’ of the United States” such that

3

state certification is required). As part of the certification, the State also may require the applicant to comply

with “any * * * appropriate requirement of State law,”

which “shall become a condition on any Federal license

or permit.” 33 U.S.C. 1341(d); see PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700, 711-714 (1994)

(construing Section 401 to permit States to “condition

certification upon any limitations necessary to ensure

compliance with state water quality standards or any

other ‘appropriate requirement[s] of State law’ ”) (quoting 33 U.S.C. 1341(d)).

Section 401 of the Clean Water Act makes federal licensing contingent on state certification: “No [federal]

license or permit shall be granted until the certification

required by this section has been obtained or has been

waived.” 33 U.S.C. 1341(a)(1); see, e.g., Keating v.

FERC, 927 F.2d 616, 622 (D.C. Cir. 1991); see also Pet.

App. 4a (“[A] state’s water quality review serves as a

precondition to any federal hydropower license issued

by FERC.”). At the same time, Section 401 does not

permit a State to “indefinitely delay[] a federal licensing

proceeding by failing to issue a timely water quality certification.” Alcoa Power Generating Inc. v. FERC,

643 F.3d 963, 972 (D.C. Cir. 2011). Instead, Section 401

provides that if a 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.” 33 U.S.C. 1341(a)(1). The Commission determines whether a State has waived certification for

the licensing of a proposed hydroelectric project. See

Alcoa Power, 643 F.3d at 972; City of Tacoma v. FERC,

460 F.3d 53, 67-68 (D.C. Cir. 2006). If the Commission

4

determines that the State has waived certification, it

may then act on the application. See 33 U.S.C.

1341(a)(1) (“No license or permit shall be granted until

the certification required by this section has been obtained or has been waived.”) (emphasis added).

2. a. This case concerns the Klamath Hydroelectric

Project (the Project), which is located primarily on the

Klamath River in California and Oregon. Pet App. 4a5a. The Project consists of seven hydroelectric developments and one non-generating dam. Id. at 22a. In

1954, FERC’s predecessor, the Federal Power Commission, issued a 50-year original license for the Project

to a predecessor of PacifiCorp. Ibid.; see id. at 5a. The

license expired in 2006. Id. at 5a. Since that time, PacifiCorp has operated the Project under annual interim licenses. Ibid.; see Klamath Water Users Ass’n v. FERC,

534 F.3d 735, 737 (D.C. Cir. 2008).

On February 25, 2004, PacifiCorp filed an application

with the Commission for a new license for the Klamath

Project. Pet. App. 22a. The company sought to relicense five of the Project’s generating developments and

to decommission the other three, “lower” dams (including the non-generating dam). Id. at 5a; see id. at 22a.

In connection with that application, in March 2006,

PacifiCorp filed requests with the California Water

Board (California) and Oregon Department of Environmental Quality (Oregon) for water quality certification

under Section 401 of the Clean Water Act. Id. at 33a.

In 2007, the Commission issued a final environmental

impact statement in the relicensing proceeding. Id.

at 22a. The Commission recommended adopting PacifiCorp’s proposal, with additional environmental measures. Ibid.

5

In 2008, a group of parties began settlement discussions regarding the decommissioning of the dams. Pet.

App. 5a. On March 5, 2010, PacifiCorp filed with the

Commission the resulting Klamath Hydroelectric Settlement Agreement (Settlement Agreement). Ibid.; see

id. at 22a-23a. The Settlement Agreement was signed

by the Governors of the States of California and Oregon

(collectively, States), PacifiCorp, the U.S. Department

of the Interior, the U.S. Department of Commerce’s National Marine Fisheries Services, several Native American tribes, and a number of local counties, irrigators,

and conservation and fishing groups. Id. at 23a. The

Settlement Agreement provided for decommissioning

PacifiCorp’s licensed Klamath River dams by 2020.

Ibid.

As part of the Settlement Agreement, the States and

PacifiCorp agreed to defer the one-year statutory limit

for certification under Section 401 by annually withdrawing and resubmitting water quality certification

requests. Pet. App. 5a; see id. at 24a. Specifically, the

Settlement Agreement provides that “PacifiCorp shall

withdraw and re-file its applications for Section 401 certifications as necessary to avoid the certifications * * *

being deemed waived under the [Clean Water Act].” Id.

at 6a (quoting Settlement Agreement 42). As contemplated by the Settlement Agreement, PacifiCorp annually withdrew and refiled its certification request eight

times. Id. at 24a.

The Settlement Agreement’s completion was contingent on federal legislation and action by the Secretary

of the Interior. Pet. App. 23a; see id. at 6a. That federal

legislation, however, was never enacted. Id. at 6a. As a

result, in April 2016, some of the parties to the Settlement Agreement (the States, federal agencies, and two

6

tribes) entered into an amended agreement that created an alternative plan for decommissioning, in which

licensing for the lower dams would be transferred to a

newly formed corporation. Id. at 6a-7a. On September

23, 2016, PacifiCorp filed for an amended license to enable transfer of the dams to that corporation. Id. at 7a.

The Commission approved dividing the dams into two

projects, but has not yet approved transfer of the licensing of the lower dams to the new corporation. Ibid.

b. The Hoopa Valley Tribe’s (Tribe) reservation is

downstream from the Klamath Hydroelectric Project.

Pet. App. 6a. The Tribe was not a party to the Settlement Agreement. Ibid. On May 25, 2012, the Tribe petitioned FERC for a declaration that the States had

waived their Section 401 authority by failing to act

within the Clean Water Act’s one-year deadline, and

that PacifiCorp had failed to diligently prosecute its license application for the Project. Id. at 7a. The Tribe

requested that the Commission dismiss PacifiCorp’s relicense application and direct PacifiCorp to decommission the Project. See id. at 24a.

The Commission denied the Tribe’s petition. Pet.

App. 21a-29a. The Commission “agree[d] with the Tribe

that the circumstances of this case are far from ideal,”

insofar as “[t]he Commission could act on PacifiCorp’s

application but for the absence of water quality certification” from the States. Id. at 25a. The Commission

further expressed “some sympathy” for the Tribe’s argument that the States’ “failure to act within one year

and their agreement with PacifiCorp not to do so

amount to waiver.” Id. at 28a; see ibid. (“Indefinite delays in licensing proceedings do not comport with at

least the spirit of the Clean Water Act.”). But the Commission determined that “the express terms of the

7

Clean Water Act” precluded it from “issu[ing] and implement[ing] a new license until water quality certification has been issued.” Id. at 25a. The Commission further stated that neither dismissing the license application nor finding waiver and issuing the license would resolve the impasse, and that either action would likely

result in further delay and litigation. See id. at 26a-29a.

The Commission subsequently denied the Tribe’s petition for rehearing. Pet. App. 30a-42a. As relevant

here, the Commission reiterated that “continued delays

in completing the water quality certification are inconsistent with Congress’ intent” in enacting the one-year

statutory deadline for state certification. Id. at 38a.

While the Commission stated that “repeated withdrawal and refiling of applications for water quality certification” may, “in many cases,” be “contrary to the

public interest” and “clearly violat[e] the spirit of the

Clean Water Act,” the Commission reiterated its view

that the States had not waived certification under “the

letter of that statute.” Id. at 39a. In the Commission’s

view, under Section 401’s text, each withdrawal and resubmission started a new one-year period, and the

States had not failed to act on any particular request

within that period. Id. at 39a-40a.

3. The court of appeals granted the Tribe’s petition

for review and vacated the Commission’s orders. Pet.

App. 1a-16a.

The court of appeals first explained that because

“FERC is not the agency charged with administering

the [Clean Water Act], the Court owes no deference to

its interpretation of Section 401 or its conclusion regarding the states’ waiver.” Pet. App. 8a (citing Alcoa

Power, 643 F.3d at 972); see id. at 11a (explaining that

the Environmental Protection Agency (EPA) is the

8

agency charged with administering the statute). Turning to the text of Section 401, the court found it “clear”

that a full year is “the absolute maximum” period in

which a State must act on a request. Id. at 10a-11a.

Here, however, “[t]he pendency of the requests for

state certification * * * has far exceeded the one-year

maximum,” because PacifiCorp had filed its original requests with the two States more than a decade before

the court’s decision. Id. at 11a.

The court of appeals rejected the contention that

each withdrawal and resubmission of PacifiCorp’s request for certification reset the statutory deadline. Pet.

App. 11a-14a. The court explained that PacifiCorp did

not withdraw its request and “submit[] a wholly new

one” each year; the court therefore “decline[d] to resolve the legitimacy of such an arrangement,” or to “determine how different a request must be to constitute a

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

Id. at 12a. Instead, the court focused on the particular

facts of this case—including that PacifiCorp “entered a

written agreement with the reviewing states to delay

water quality certification,” and that each year, “PacifiCorp sent a letter indicating withdrawal of its water

quality certification and resubmission of the very same”

application. Ibid.; see id. at 13a.

The court of appeals determined that the States’ “deliberate and contractual idleness defie[d] [the statute’s]

requirement” to act within a reasonable period of time,

not to exceed one year. Pet. App. 13a. The court further

found the “withdrawal-and-resubmission” arrangement

inconsistent with the statutory purpose. Ibid. The

court explained that, “if allowed,” the “withdrawal-andresubmission scheme could be used to indefinitely delay

federal licensing proceedings and undermine FERC’s

9

jurisdiction to regulate such matters.” Ibid. The court

distinguished the Second Circuit’s decision in New York

State Department of Environmental Conservation v.

FERC, 884 F.3d 450 (2018), which suggested that a

State could request that an applicant withdraw and resubmit an application for certification, because that statement was “dicta.” Pet. App. 13a-14a (emphasis omitted);

see New York State Dep’t of Envtl. Conservation,

884 F.3d at 455-456.

The court of appeals also disagreed with the Commission’s view that finding waiver would be futile, because it would require the Commission to deny PacifiCorp’s license, and PacifiCorp would then have to file a

decommissioning plan, which would itself require state

certification. Pet. App. 14a-16a. The court therefore

vacated and remanded the Commission’s orders and directed the agency to “proceed with its review of, and licensing determination for,” the Project. Id. at 16a.

ARGUMENT

Petitioners contend (Pet. 23-30) that the court of appeals erred in holding that the States waived their authority to issue water quality certifications under Section 401 of the Clean Water Act by contractually agreeing to delay certification through the repeated withdrawal and resubmission of certification requests. Petitioners further argue (Pet. 16-22) that the decision below diverges from those of other courts of appeals.

Those contentions lack merit. The court of appeals reasonably interpreted Section 401 of the Clean Water Act

as applied to the facts of this case, and its decision does

not conflict with any decision of this Court or of another

court of appeals. Even if review of the question presented were otherwise warranted, it would be premature at this time because the EPA—the agency charged

10

with administering the Clean Water Act—is developing

new regulations interpreting Section 401. The petition

for a writ of certiorari should be denied.

1. Contrary to petitioners’ contentions (Pet. 23-30),

the court of appeals’ decision violates neither the statutory text nor its purpose.

a. With respect to the text, the court of appeals reasonably determined, on the facts of this case, that the

States “fail[ed] or refus[ed] to act on a request for certification, within a reasonable period of time (which

shall not exceed one year).” 33 U.S.C. 1341(a)(1); see

Pet. App. 11a-13a. Specifically, the court relied on the

States’ entry into a written agreement with PacifiCorp

“to delay water quality certification,” and on PacifiCorp’s resulting “withdrawal * * * and resubmission of

the very same” application year after year, which resulted in a delay of more than a decade. Pet. App. 12a

(emphasis added).

b. i. With respect to the statutory purpose, petitioners first contend (Pet. 23, 29-30) that the decision

below undermines the important role that States play in

addressing water pollution. Petitioners are correct

(ibid.) that the Clean Water Act preserves a significant

role for the States. Specifically, it affords States the

authority to determine whether a discharge from a covered activity complies with applicable water quality requirements. Indeed, Section 401 enables a State to

block federal approval by denying a request for certification: “No license or permit shall be granted if certification has been denied by the State.” 33 U.S.C.

1341(a)(1).

The purpose of Section 401 is not, however, limited

to “continu[ing] the authority of the State . . . to act to

deny a permit.” Pet. 29 (quoting S. D. Warren Co. v.

11

Maine Bd. of Envtl. Prot., 547 U.S. 370, 380 (2006))

(brackets in original). Section 401 also includes a waiver

provision, the “purpose of [which] 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); see Pet.

App. 13a (“Congress intended Section 401 to curb a

state’s ‘dalliance or unreasonable delay.’ ”) (quoting

115 Cong. Rec. 9264 (1969)).

The court of appeals reasonably concluded that the

States’ actions here were inconsistent with that statutory purpose. Pet. App. 12a-13a. The court focused on

the facts of this case, in which the States had agreed by

contract to extend the waiver period for more than a

decade by annual withdrawal-and-resubmission of the

same request for certification. Ibid. “By shelving water

quality certifications,” the court explained, “the states

usurp FERC’s control over whether and when a [hydropower] license will issue.” Id. at 13a. The court continued that, “if allowed, the withdrawal-and-resubmission

scheme could be used to indefinitely delay federal licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.” Ibid.; see id. at 12a (coordinated withdrawal-and-resubmission “serves to circumvent a congressionally granted authority over the

licensing, conditioning, and developing of a hydropower

project”). Thus, by rejecting the States’ extended

delay through coordinated, repeated withdrawal-andresubmission of the same request, the court gave effect

to the statute’s purpose. Cf. Constitution Pipeline Co.,

162 F.E.R.C. ¶ 61,014, at ¶ 23 (2018) (“[S]tates and project sponsors that engage in repeated withdrawal and

refiling of applications for water quality certifications

12

are acting, in many cases, contrary to the public interest

and to the spirit of the Clean Water Act by failing to

provide reasonably expeditious state decisions”); accord Pet. App. 28a (Commission stating that “[i]ndefinite delays in licensing proceedings do not comport with

at least the spirit of the Clean Water Act.”); see id. at

35a, 39a.

ii. Petitioners relatedly contend (Pet. 24-26) that by

enforcing the statute’s one-year waiver period, the

court of appeals’ decision leaves States unable to fulfill

their role under the Clean Water Act. Accord States

Amicus Br. 19. Specifically, petitioners suggest that

one year will not be enough time for States to develop

an adequate record and complete an appropriate analysis for complex projects; without the ability to extend

the waiver period by the withdrawal-and-resubmission

mechanism, petitioners maintain, States must either

“render premature certifications” or “reflexively deny

certification requests.” Pet. 24.

As an initial matter, however, the court of appeals

addressed only the “specific factual scenario presented

in this case, i.e., an applicant agreeing with the reviewing states to exploit the withdrawal-and-resubmission

of water quality certification requests over a lengthy

period of time.” Pet. App. 13a; see id. at 3a, 10a, 11a,

12a, 14a. The court did not hold that an applicant may

never reset the deadline for a State to act by withdrawing a request for certification and then submitting another request. Id. at 12a. Because PacifiCorp had sent

a one-page letter to California and Oregon, each year,

that indicated its withdrawal of the request and resubmission of the very same document, the court “decline[d] to resolve the legitimacy” of withdrawal and

submission of a “new” request. Ibid. And it likewise

13

stated that it “need not determine how different a request must be to constitute a ‘new request’ such that it

restarts the one-year clock.” Ibid.

In any event, to the extent the statutory “one-year

review period could result in incomplete applications

and premature decisions,” the court of appeals explained that “it is the role of the legislature, not the judiciary, to resolve such fears.” Pet. App. 14a; accord

Constitution Pipeline Co., 168 F.E.R.C. ¶ 61,129, at

¶ 42 (2019) (“Arguments that the [court’s] waiver conclusion is inconsistent with Congressional intent must

be addressed to Congress, which alone has authority to

revise federal legislation.”). If the statutory one-year

time limit provides insufficient time for States to consider certain certification requests, their proper recourse is with Congress, rather than the courts.

iii. Petitioners further assert (Pet. 26-28) that, by increasing the frequency with which the Commission may

find that a State has waived its certification authority,

the decision below will undermine the States’ ability to

protect the environment through certification. See also

States Amicus Br. 14. Petitioners fail to recognize, however, that delays in certification can themselves

threaten environmental harm. As the EPA has explained, “[p]erpetual delay of relicensing efforts * * *

delays the implementation and enforcement of water

quality requirements that have been updated and made

more stringent in the years or decades since the last relicensing process.” Updating Regulations on Water

Quality Certification, 84 Fed. Reg. 44,080, 44,108 (Aug.

22, 2019). In this case, for example, the Project has continued to operate under annual interim licenses—based

on terms set in 1954—during the period in which PacifiCorp repeatedly withdrew and resubmitted the same

14

certification application to the States. See Pet. App. 5a;

18 C.F.R. 16.18; see also Hoopa Valley Tribe v. FERC,

629 F.3d 209, 211-213 (D.C. Cir. 2010) (upholding Commission’s policy of declining to impose interim conditions on an annual license unless a project threatens “irreversible environmental harm” or has “ ‘unanticipated,

serious impacts’ on fishery resources,” as well as its determination that those standards were not met in this

case) (citation omitted).

Nor are petitioners correct (Pet. 26-28) that the

Commission has improperly applied the court of appeals’ decision to pending license applications, threatening environmental harm. Before the decision below,

the Commission had explained its interpretation of Section 401 in several cases, including the 2018 Constitution Pipeline order. See States Amicus Br. 16-17 (discussing Constitution Pipeline). There (as in this case),

the Commission determined that an applicant could restart the waiver period by withdrawing and resubmitting its request; while the Commission was “concerned

that, in many cases,” withdrawal and resubmission is

“contrary to the public interest and to the spirit of the

Clean Water Act,” it found the “practice” not barred by

“the letter of the statute.” 162 F.E.R.C. ¶ 61,014, at

¶ 23. In that case, a pipeline twice withdrew and refiled

its application for water quality certification, at the request of the New York Department of Environmental

Conservation; the State ultimately denied the certification three years after the initial filing. See id. ¶ 18.

Following the decision below, the Commission

sought a voluntary remand of its Constitution Pipeline

order, which was then pending on judicial review in the

D.C. Circuit, in order to consider the effect of the court

of appeals’ decision in this case. The Commission issued

15

a further order on remand on August 28, 2019. Constitution Pipeline, 168 F.E.R.C. ¶ 61,129. Considering the

specific facts of that case, the Commission found waiver.

The Commission explained that both the State and the

applicant acknowledged that the State had asked the

applicant to withdraw and resubmit its request, and

that (as in this case) the parties’ intent was “to exploit

the withdrawal and resubmission of water quality certification requests” in order to avoid waiver, contrary to

Section 401’s “plain language.” Id. ¶¶ 33-34, 37. The

Commission declined to decide the question left open by

the court of appeals here, i.e., “how different a subsequent request must be to constitute a ‘new request’ such

that it restarts the one-year clock,” because the applicant had simply withdrawn and resubmitted its request

in a two-page letter. Id. ¶¶ 38-39 (citation omitted).

Petitioners cite (Pet. 26-27) two other proceedings in

which FERC has relied on the decision below in pending license applications. Those decisions do not suggest

that the Commission has relied on the decision improperly, or that further review is warranted. In Placer

County Water Agency, 167 F.E.R.C. ¶ 61,056 (2019)

(cited by petitioners as “Middle Fork American Project,” Pet. 26-27), the applicant and the California Water

Resources Control Board had coordinated to withdraw

and refile a request seven times between 2011 and 2019,

“delay[ing] a certification decision by over six years.”

Id. ¶ 12; see id. ¶¶ 4-6. In addition, the record revealed

that the applicant “did not ever file a new application,”

“because the parties only exchanged correspondence indicating that they would refile without actually doing

so.” Id. ¶ 18 & n.24.

16

In National Fuel Gas Supply Corp., 164 F.E.R.C.

¶ 61,084 (2018) (cited by petitioners as “Northern Access 2016 Project,” Pet. 21, 27), the Commission held—

before the decision below—that the New York Department of Environmental Conservation had waived its

certification authority where the parties agreed to alter

the date “on which the application was deemed received” so as to extend the certification period. Id. ¶ 35

(citation omitted); see id. at ¶¶ 39-45. Following the

court of appeals’ decision in this case, the Commission

denied the state agency’s request for rehearing in National Fuel Gas Supply Corp. 167 F.E.R.C. ¶ 61,007

(2019). The Commission explained that the decision below supported its initial determination, insofar as the

court of appeals in this case rejected “an agreement

* * * reached to delay the state agency’s action on a water quality certification application.” Id. ¶ 11; see id.

¶¶ 12, 20.

2. Petitioners contend (Pet. 16) that the decision below “deepened an existing circuit conflict on the question of when and how states waive their Clean Water

Act certification authority.” See Pet. 4, 16-22. As already discussed, however, the court of appeals’ decision

was limited to the specific facts before it. In any event,

the decision below does not contribute to any division in

the courts of appeals that warrants this Court’s review.

Petitioners’ suggestion of a circuit split (Pet. 16-22)

relies on decisions from the Second and Fourth Circuits. But those decisions focus on whether an application for certification must be “valid” or “complete” before Section 401’s waiver period begins to run—not the

permissibility of repeated withdrawals and resubmissions of the same request pursuant to an agreement between an applicant and a State. Ibid.

17

Petitioners first cite (Pet. 17-18) AES Sparrows

Point LNG, LLC v. Wilson, 589 F.3d 721 (4th Cir. 2009).

There, Maryland received a request for water quality

certification on January 9, 2007, and denied the request

on April 24, 2009. Id. at 725-726. The applicant sought

review pursuant to the Administrative Procedure Act,

5 U.S.C. 701 and 706, contending that Maryland’s denial

was untimely and “therefore, not in accordance with

law.” AES Sparrows Point, 589 F.3d at 728. Deferring

to a regulation of the Army Corps of Engineers (the relevant federal permitting agency in that case), the

Fourth Circuit held that Section 401’s one-year certification period did not begin to run until the Corps verified that the state certifying agency had received a

“valid” request—in that case, on April 25, 2008. Id. at

729. Because Maryland denied the request for certification within one year of that determination, the court

held that the State did not waive its authority under

Section 401. Ibid.

In New York State Department of Environmental

Conservation v. FERC, 884 F.3d 450 (2d Cir. 2018), the

applicant submitted a request for water quality certification on November 18, 2015, which the relevant New

York agency received on November 23, 2015. Id. at 453.

The state agency informed the applicant that it deemed

the application incomplete on multiple occasions. Ibid.

When the agency had not acted on the application by

July 21, 2017, the applicant asked the Commission to

determine that the agency had waived its Section 401

authority. Id. at 454. The Commission held that it had,

relying on the “plain language of Section 401—which

states that the window for review opens upon ‘receipt of

such request’ ” by the certifying authority. Ibid. (quoting 33 U.S.C. 1341(a)(1)). The Second Circuit agreed,

18

stating that “[t]he plain language of Section 401 outlines

a bright-line rule regarding the beginning of review:

the timeline for a state’s action regarding a request for

certification ‘shall not exceed one year’ after ‘receipt of

such request.’ ” Id. at 455 (quoting 33 U.S.C. 1341(a)(1)).

The Second Circuit thus rejected the argument that

“th[e] time limit applies only for ‘complete’ applications.” Id. at 456. The court did not address the Fourth

Circuit’s decision in AES Sparrows Point. See id. at

455-456.

Because the decision below did not address whether

Section 401’s one-year period for certification begins to

run when the state agency first receives an application

—or only when that application is deemed “valid” or

“complete”—the decision below does not conflict with

those of the Second and Fourth Circuits. Petitioners

nonetheless point out (Pet. 19) that in rejecting New

York’s argument that the one-year period begins to run

only when an application is “complete,” the Second Circuit suggested that if the one-year period provides a

State insufficient time to act, the State could deny an

“incomplete” application “without prejudice” or “request that the applicant withdraw and resubmit the application.” New York State Dep’t of Envtl. Conservation,884 F.3d at 456. As the court of appeals recognized,

however, that statement “was not central to the” Second Circuit’s “holding” that the one-year period runs

from the time of receipt. Pet. App. 14a. Instead, the

Second Circuit’s statement was a response, in “dicta,”

to concerns that a one-year review period could result

in incomplete applications and premature state decisions. Ibid. In addition, in suggesting that withdrawal

and resubmission might be permissible in some circumstances, the Second Circuit did not address the form

19

that such withdrawal and resubmission might take, consider what changes might render a second submission a

new request, or determine how long a State and an applicant might delay review. The decision below, which

focused on the facts of this case, see pp. 7-8, 10-13, supra, thus does not conflict with the Second Circuit’s

brief suggestion that withdrawal and resubmission

might be possible in some circumstances.

3. Finally, even if the question presented otherwise

warranted review, such review would be premature at

this time. EPA—the agency charged with administering the Clean Water Act, see Pet. App. 11a—is currently engaging in rulemaking to revise its regulations

implementing Section 401.

EPA’s existing certification regulations are nearly

50 years old. In 1971, EPA promulgated regulations at

40 C.F.R. Pt. 121, which interpret a provision of the

Federal Water Pollution Control Act, 33 U.S.C. 1251

et seq., that is similar, but not identical, to Section 401.

See 36 Fed. Reg. 22,487 (Nov. 25, 1971). EPA never updated the regulations to reflect Congress’s enactment,

in 1972, of the Clean Water Act. 84 Fed. Reg. at 44,081;

see Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816. Recognizing

that the “[o]utdated” regulations are “causing confusion

and uncertainty,” in April 2019, the President issued an

Executive Order that, inter alia, instructed EPA to initiate a rulemaking to update the regulations. Exec. Order No. 13,868, § 3, 84 Fed. Reg. 15,495, 15,496 (Apr. 15,

2019). The President directed EPA to propose new regulations within 120 days and to finalize the rule within

13 months, by May 2020. Ibid.

In response to the Executive Order, the EPA Administrator signed a proposed rule on August 8, 2019.

20

84 Fed. Reg. at 44,080. The proposed rule is EPA’s

“first comprehensive effort” to promulgate regulations

implementing Section 401 and reflects the agency’s

“first holistic analysis of the statutory text, legislative

history, and relevant case law informing the implementation of the [Clean Water Act] section 401 program.”

Id. at 44,084. EPA invited the public to comment on the

proposed rule by October 21, 2019. Id. at 44,080. 1

In the August 2019 proposed rule, EPA proposed to

interpret Section 401 to impose a one-year outer limit

on the time in which a State must act after it receives

an applicant’s request for certification. 84 Fed. Reg. at

44,120 (proposing new language at 40 C.F.R. 121.4(a));

ibid. (proposing new language at 40 C.F.R. 121.4(e)).

With respect to the type of coordinated withdrawaland-resubmission mechanism at issue in this case, EPA

proposed a new regulation clarifying that the “certifying authority is not authorized to request the project

proponent to withdraw a certification request or to take

In the Executive Order, the President also instructed EPA to

issue new guidance on water quality certifications superseding its

2010 interim guidance. Exec. Order No. 13,868, § 3, 84 Fed. Reg. at

15,496. EPA issued that superseding guidance in June 2019. Clean

Water Act Section 401 Guidance for Federal Agencies, States and

Authorized Tribes 1 n.1 (June 7, 2019), https://www.epa.gov/sites/

production/files/2019-06/documents/cwa_section_401_guidance.pdf

(June 2019 Guidance). Cf. Pet. 8 n.2 (citing to the 2010 version of

the guidance). The guidance is “intended to assist federal permitting agencies and states and tribes until the EPA promulgates a final rule updating its [Clean Water Act] Section 401 regulations.”

June 2019 Guidance 1 n.1.

1

21

any other action for the purpose of modifying or restarting the established reasonable period of time.” Ibid.

(proposing new language at 40 C.F.R. 121.4(f)). 2

In proposing the new regulations, EPA “agree[d]”

with the court of appeals’ determination in this case

“that ‘Section 401’s text is clear’ that one year is the absolute maximum time permitted for a certification.”

84 Fed. Reg. at 44,107-44,108 (quoting Pet. App. 10a).

Thus, EPA proposed to interpret Section 401 “in a manner consistent with” the decision below. Id. at 44,086.

But EPA also recognized that the decision in this case

has limited reach. Id. at 44,091 (observing that the

court of appeals “declined to ‘resolve the legitimacy’ of

an alternative arrangement whereby an applicant may

actually submit a new request in place of the old one”)

(quoting Pet. App. 12a). And EPA noted that “where

the certifying authority and project proponent are

working collaboratively and in good faith, it may be desirable to allow the certification process to extend” beyond the deadline set by Section 401. Id. at 44,108.

EPA therefore solicited comments on “whether there is

any legal basis to allow a federal agency to extend the

reasonable period of time beyond one year from receipt.” Ibid.

In light of EPA’s ongoing rulemaking, review of the

court of appeals’ decision would not be warranted at this

time even if the issue otherwise warranted review by

this Court. Congress charged EPA with administering

the Clean Water Act, and EPA therefore is responsible

EPA further observed that Congress left the terms “certification request” and “receipt” in Section 401 undefined, and it therefore proposed to establish uniform definitions of those terms.

84 Fed. Reg. at 44,101.

2

22

for developing regulations to ensure effective implementation of the Section 401 program. 33 U.S.C.

1251(d) (“Except as otherwise expressly provided in

this chapter, the Administrator of the Environmental

Protection Agency * * * shall administer this chapter.”). EPA has proposed regulations interpreting the

relevant statutory language and invited public comments, and the Executive Order provides for the regulations to be finalized by May 2020. Once the regulations are finalized, federal agencies will be able to apply

them in the first instance, followed by review in the

lower courts. Given the ongoing rulemaking, review of

the court of appeals’ decision at this time would be

premature.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JAMES P. DANLY

General Counsel

ROBERT H. SOLOMON

Solicitor

CAROL J. BANTA

Senior Attorney

Federal Energy Regulatory

Commission

OCTOBER 2019

NOEL J. FRANCISCO

Solicitor General