Amicus Curiae Brief — Turlock Irrigation District, et al., Petitioners v. Federal Energy Regulatory Commission, et al.

Supreme Court briefFeb 6, 2023

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No. 22-616

In the Supreme Court of the United States

TURLOCK IRRIGATION DISTRICT AND

MODESTO IRRIGATION DISTRICT,

Petitioners,

FEDERAL ENERGY REGULATORY

COMMISSION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the District of Columbia

BRIEF OF HYDROPOWER AMICI IN SUPPORT

OF PETITIONERS

MICHAEL A. SWIGER

Counsel of Record

MICHAEL F. McBRIDE

VAN NESS FELDMAN LLP

1050 Thomas Jefferson Street, NW

Seventh Floor

Washington, DC 20007

(202) 298-1800

mas@vnf.com

Counsel for Amici Curiae

February 6, 2023

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT ...................................11

ARGUMENT ..............................................................12

The Court’s Review Is Needed to Address

the Important Federal Question of Whether

Section

401’s

One-Year

Limit

Enforceable To Ensure Timely State Action

On Federally Permitted Projects....................12

II.

This Court’s Review Is Needed To Clarify

That State Law Processes Cannot Override

the CWA One-Year Deadline. ........................15

III.

This Court’s Review Is Necessary To

Restore

Order

and

Certainty

Hydropower Licensing. ...................................17

CONCLUSION ..........................................................21

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Rivers All. v. FERC,

325 F.3d 290 (D.C. Cir. 2003) ..............................10

Alcoa Power Generating Inc. v. FERC,

643 F.3d 963 (D.C. Cir. 2011) .................. 10, 12, 20

Am. Rivers, Inc. v. FERC,

129 F.3d 99 (2d Cir. 1997)......................................9

Appalachian Voices v. State Water Control Bd.,

912 F.3d 746 (4th Cir. 2019) ................................16

First Iowa Hydro-Elec. Coop. v. FPC,

328 U.S. 152 (1946) ............................................8, 9

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir.), cert. denied sub nom.

Cal. Trout v. Hoopa Valley Tribe, 140 S. Ct. 650

(2019) (mem.)........................................................18

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

884 F.3d 450 (2d Cir. 2018)...................... 11, 12, 13

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

991 F.3d 439 (2d Cir. 2021)................ 11, 12, 13, 19

New York v. United States,

505 U.S. 144 (1992) ..............................................16

iii

PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of

Ecology,

511 U.S. 700 (1994) ................................................9

S.D. Warren Co. v. Me. Bd. of Env’t Prot.,

547 U.S. 370 (2006) ..........................................9, 10

Sierra Club v. ICG E., LLC,

833 F. Supp. 2d 571 (N.D. W.Va. 2011)...............15

Cal. State Water Res. Control Bd. v. FERC,

43 F.4th 920 (9th Cir. 2022) .................... 13, 16, 17

Turlock Irrigation Dist. v. FERC,

36 F.4th 1179 (D.C. Cir.), reh’g en banc denied,

No. 21-1120 (D.C. Cir. Sept. 6, 2022) ....................6

Constitutional Provisions

U.S. Const. art. VI, cl. 2 ............................................17

Statutes and Rules

16 U.S.C. § 797(e) ....................................................8, 9

16 U.S.C. § 803(a)(1) ....................................................9

16 U.S.C. § 803(j) .........................................................9

16 U.S.C. § 808 ............................................................8

16 U.S.C. § 817 ............................................................8

33 U.S.C. § 1341 ..........................................................6

33 U.S.C. § 1341(a) ......................................................6

33 U.S.C. § 1341(a)(1) ..........................................10, 12

N.Y. Comp. Codes R. & Regs., tit. 6, § 608.9

(2022) ....................................................................17

Or. Admin. R. 340-048-0005 et seq. (2022)...............17

Or. Rev. Stat., tit. 36a, ch. 468B (2022) ....................17

Wash. Admin. Code § 173-201A-010 et seq.

(2022) ....................................................................17

Wash. Rev. Code, ch. 43.21c (2022) ..........................17

Regulations

18 C.F.R. § 4.38..........................................................14

18 C.F.R. § 5.5............................................................14

18 C.F.R. § 5.6............................................................14

18 C.F.R. § 5.7............................................................14

18 C.F.R. § 5.8............................................................14

18 C.F.R. § 5.9............................................................14

18 C.F.R. § 5.10..........................................................14

18 C.F.R. § 5.11..........................................................14

18 C.F.R. § 5.12..........................................................14

18 C.F.R. § 5.13..........................................................14

18 C.F.R. § 5.14..........................................................14

18 C.F.R. § 5.15..........................................................14

18 C.F.R. § 5.16..........................................................14

18 C.F.R. § 5.17..........................................................14

18 C.F.R. § 5.18..........................................................14

Agency Decisions

Barrish & Sorenson Hydroelectric Corp.,

69 FERC ¶ 61,206 (1994) .....................................14

FPL Energy Me. Hydro LLC,

108 FERC ¶ 61,261 (2004) ...................................15

Moriah Hydro Corp.,

173 FERC ¶ 62,132 (2020) ...................................14

N. Star Hydro Ltd.,

58 FERC ¶ 61,266 (1992) .....................................14

Nev. Irrigation Dist.,

171 FERC ¶ 61,029, reh’g denied, 172 FERC

¶ 61,082 (2020), vacated and remanded by Cal.

State Water Res. Control Bd. v. FERC, 43 F.4th

920 (9th Cir. 2022) ...............................................16

Turlock Irrigation Dist.,

174 FERC ¶ 61,042, reh’g denied, 174 FERC

¶ 62,175, order on reh’g, 175 FERC ¶ 61,144

(2021) ......................................................................6

Other Authorities

115 Cong. Rec. 9,264 (1969) ......................................10

Claudia Copeland, Cong. Research Service, Clean

Water Act Section 401: Background and Issues

(July 2, 2015) ........................................................18

FERC, Report on Hydroelectric Licensing Policies,

Procedures, and Regulations Comprehensive

Review and Recommendations Pursuant to

Section 603 of the Energy Act of 2000 (May

2001) .....................................................................18

S. Hrg. 105-381, 105th Cong. 55 (1997) (Prepared

Statement of James J. Hoecker, FERC

Chairman) ............................................................18

U.S. Department of Energy, Hydropower Vision: A

New Chapter for America’s 1st Renewable

Electricity

Source

(2016),

http://energy.gov/sites/prod/files/2016/10/f33/H

ydropower-Vision-10262016_0.pdf ........................7

U.S.

Energy

Information

Administration,

Frequently Asked Questions, Electricity

Generation

Source,

https://www.eia.gov/tools/faqs/faq.php?id=427

&t=3 ........................................................................7

INTEREST OF AMICI CURIAE

Kings River Conservation District (“KRCD”),

Merced Irrigation District (“MID”), National

Hydropower Association (“NHA”), Nevada Irrigation

District (“NID”), Northwest Hydroelectric Association

(“NWHA”), Northwest Public Power Association

(“NWPPA”), Public Utility District No. 1 of Snohomish

County, Washington (“Snohomish”), Rye Development

(“Rye”), San Diego County Water Authority

(“SDCWA”), South Feather Water and Power Agency

(“SFWPA”), and Yuba County Water Agency d/b/a

Yuba Water Agency (“YWA”) (together, “Hydropower

Amici”) consist of electric utilities, water districts, and

other hydropower project owners and operators from

across the nation, as well as trade associations

representing the hydropower industry nationwide, all

of whom may be affected by the Court’s decision in this

case. 1 Several individual members of Hydropower

Amici are currently involved in the Federal Energy

Regulatory Commission (“FERC”) licensing process

and are subject to the requirement to obtain a state

water quality certification. In particular:

Pursuant to Supreme Court Rule 37.2, counsel of record for

all parties received notice of Hydropower Amici’s intention to file

this amici curiae brief at least 10 days prior to the due date.

Pursuant to Supreme Court Rule 37.6, Hydropower Amici offer

the following additional statement: No counsel for any party

authored the brief in whole or in part; no party or party’s counsel

contributed money intended to fund preparation or submission of

this brief; and no person other than amici or their members made

monetary contributions intended to fund preparation or

submission of the brief.

KRCD is a California public agency created in

1951 by the Kings River Conservation Act. KRCD was

formed to be the local agency responsible for the

operations and maintenance of the U.S. Army Corps

of Engineers flood control project downstream from

Pine Flat Dam for safe passage of flood water in the

Kings River channel. KRCD is the FERC licensee for

the 165-megawatt Jeff L. Taylor Pine Flat

Hydroelectric Project, the license for which expires in

2029.

MID is an irrigation district organized under

California law. MID owns, operates, and maintains

the New Exchequer, McSwain, and Merced Falls

dams, reservoirs, and hydroelectric facilities in

California, all of which are in the FERC relicensing

process.

Through its 105-megawatt-capacity

hydroelectric projects, it supplies electric services to

commercial, industrial, and residential customers in

Eastern Merced County. It also provides affordable

irrigation water for its approximately 2,200 local

growers.

NHA is a non-profit national association

dedicated exclusively to advancing the interests of the

U.S. hydropower industry, including conventional,

pumped storage, and new hydrokinetic technologies.

NHA promotes the role of hydropower as a clean,

renewable, and reliable energy source that advances

national environmental and energy policy objectives.

NHA’s membership consists of over 300 organizations

including public power utilities, investor-owned

utilities, independent power producers, project

developers, equipment manufacturers, environmental

and engineering consultants, and attorneys.

NID is an irrigation district organized under

California law. NID owns and operates several

hydropower projects, including the FERC-licensed, 80megawatt Yuba-Bear Hydroelectric Project, which is

in the relicensing process.

NID’s service area

currently encompasses more than 287,000 acres in

Nevada and Placer Counties. NID provides treated

water to approximately 20,000 customer accounts and

irrigation supply to roughly 5,500 accounts.

NWHA is a non-profit trade association that

represents and advocates on behalf of the Northwest

hydroelectric industry. NWHA has approximately 130

members from all segments of the industry. NWHA is

dedicated to the promotion of the Northwest region’s

waterpower as a clean, efficient energy source while

protecting the fisheries and environmental quality

that characterize the region.

NWPPA is an electrical utility trade association

formed in 1941, representing over 150 consumerowned utilities in the western United States, Alaska,

and Canada. NWPPA is dedicated to serving the

interests of its members and their millions of public

electric utility customers. The central mission of

consumer-owned utilities is to serve their

communities with reliable and low-cost power on a

not-for-profit basis. NWPPA has continuously been an

advocate for public power on behalf of its member

utilities.

Snohomish is a Washington municipal

corporation, formed by a majority vote of the people in

1936 for the purpose of providing electric and water

utility service. Snohomish is the second largest

consumer-owned utility in Washington and has

experienced rapid growth within its service territory

in recent years. Snohomish owns and operates several

FERC-licensed hydropower projects, including the

112-megawatt Henry M. Jackson Hydroelectric

Project. Snohomish has recently developed two runof-the-river hydroelectric projects, which will generate

enough clean energy annually to serve up to 10,000

homes.

Rye is a leading developer of new low-impact

hydropower energy generation and energy storage in

the United States. Among others, Rye leads the

development of the proposed Kentucky River Lock and

Dam No. 11 Hydroelectric Project (Kentucky), Overton

Lock and Dam Project (Louisiana), Enid Lake

Hydroelectric Project (Mississippi), Beverly Lock and

Dam Water Power Project (Ohio), Swan Lake Project

(Oregon), Allegheny Lock and Dam 2 Hydroelectric

Project

(Pennsylvania),

Goldendale

Project

(Washington), and Morgantown Lock and Dam

Hydroelectric Project (West Virginia).

SDCWA was established in 1944 pursuant to

the County Water Authority Act, Cal. Water Code

App., ch. 545, statutes of 1943, as amended, to provide

wholesale water service to its 24 member agencies and

approximately 3,000,000 residents located in the San

Diego region. As part of its mission to provide safe,

reliable, and affordable water supply, SDCWA has

invested significant resources to secure a reliable

energy supply.

Among other actions, SDCWA

constructed and in 2012 began operating the 40megawatt Lake Hodges Pumped Storage Facility,

which connects two reservoirs owned by SDCWA and

the City of San Diego and generates enough power to

sustain 26,000 homes annually. Currently, SDCWA

and the City hold a FERC preliminary permit to

determine the feasibility of developing the San

Vicente Energy Storage Facility Project, a proposed

500-megawatt closed-loop pumped storage facility

with up to eight hours of storage capacity.

SFWPA is a California Irrigation District

formed under California Water Code Division 11.

SFWPA provides treated and raw water service to

thousands of customers. SFWPA owns the 117megawatt South Feather Power Project—consisting of

eight dams, nine tunnels, 21 miles of canals and

conduits, and four hydroelectric power plants—which

is in the FERC relicensing process.

YWA is the public agency that the State of

California created in 1959 for the explicit purpose of

addressing Yuba County’s water problems, after a

devastating flood on the Feather River killed 40 people

in 1955. YWA is the licensee and owner of the 362megawatt Yuba River Development Project, which

generates hydroelectricity that is used throughout

Northern California, provides flood control for Yuba

County’s communities, and serves irrigation water

needs within the County. YWA’s water supplies serve

the dual purpose of generating hydroelectricity and

supporting the irrigation of about 100,000 acres of

farmland. YWA also is the licensee for the 12megawatt Narrows Project.

Both projects are

undergoing FERC relicensing.

In this case, Petitioners Turlock Irrigation

District and Modesto Irrigation District (“Districts”)

filed petitions for review challenging FERC orders

denying the Districts’ petition for declaratory order.

FERC found that the California State Water

Resources Control Board (“State Water Board”) did

not waive its authority under Section 401 of the Clean

Water Act (“CWA”), 33 U.S.C. § 1341. Section 401

requires an applicant for a federal license or permit to

conduct an activity that may result in a discharge into

navigable waters to request a certification from the

state in which the discharge will originate that the

discharge complies with state water quality

standards. The state has one year to act on the

request or its certification authority is waived. See id.

§ 1341(a). In this case, FERC found that the State

Water Board’s repeated, rote denials of the Districts’

certification request “without prejudice” to refile the

same request, without action on the merits of the

request, did not constitute a failure to act. Turlock

Irrigation Dist., 174 FERC ¶ 61,042 (App. 40a-70a),

reh’g denied, 174 FERC ¶ 62,175 (App. 38a-39a), order

on reh’g, 175 FERC ¶ 61,144 (2021) (App. 11a-37a).2

The U.S. Court of Appeals for the D.C. Circuit

affirmed. Turlock Irrigation Dist. v. FERC, 36 F.4th

1179 (D.C. Cir.) (App. 1a-10a), reh’g en banc denied,

No. 21-1120 (D.C. Cir. Sept. 6, 2022). Hydropower

Amici support the Districts’ contention, consistent

“App.” refers to pages in the Appendix of the Petition.

with the dissenting opinion of FERC Commissioner

Danly, that FERC should have found waiver under

these circumstances and that the D.C. Circuit erred in

affirming FERC’s decision. See App. 30a (Danly,

Comm’r, dissenting).

The Court’s decision whether to grant certiorari

in this case will have far-reaching impacts on the

nation’s hydropower industry and supply of electric

energy. The unlawful state delay tactic at issue in this

case has the potential to impede indefinitely the

federal licensing and relicensing of hydroelectric

projects and the public benefits they provide.

Hydropower projects are an important source of

electric power, accounting for approximately 7% of

total national electric production each year. As the

most mature, low-cost, and reliable renewable energy

resource, hydropower alone accounts for over onethird of the country’s renewable energy. 3 Beyond

electric production, hydropower provides a multitude

of benefits to the interstate electric grid, including grid

stability and reliability to support the integration of

energy from solar and wind facilities, and enables

many states to achieve their renewable energy goals. 4

Hydropower is likely to increase in importance as the

United States works to address climate change

U.S. Energy Information Administration, Frequently Asked

Questions,

Electricity

Generation

Source,

https://www.eia.gov/tools/faqs/faq.php?id=427&t=3.

U.S. Department of Energy, Hydropower Vision: A New

Chapter for America’s 1st Renewable Electricity Source 373

(2016),

http://energy.gov/sites/prod/files/2016/10/f33/HydropowerVision-10262016_0.pdf.

impacts and reduce dependence on fossil fuels. The

U.S. Department of Energy estimates that

hydropower capacity in the United States has the

potential to grow 50 percent from 101 gigawatts to

nearly 150 gigawatts by 2050. 5 In addition to benefits

to electric consumers, hydropower projects provide

numerous other benefits to the communities where

they are located, such as municipal and industrial

water supply, navigation, flood control, irrigation,

recreation, and fish and wildlife habitat.

Regulatory delays generally, and the CWA

Section 401 process in particular, in the permitting of

hydropower projects are a major impediment to

achieving these benefits and to decarbonizing the

nation’s energy supply. Almost all non-federally

owned hydropower projects are subject to the

comprehensive regulatory regime of the Federal

Power Act (“FPA”). 16 U.S.C. §§ 791-825r. Under the

FPA, FERC has exclusive authority to issue licenses

authorizing the construction, operation, and

maintenance of new and existing hydroelectric

projects. See id. §§ 797(e), 808, 817. Congress enacted

the FPA (and its predecessor statute, the Federal

Water Power Act of 1920) “to secure a comprehensive

development of national resources.” First Iowa HydroElec. Coop. v. FPC, 328 U.S. 152, 180-81 (1946). The

“long and colorful legislative history” of the FPA

reflects “a vigorous determination of Congress to make

progress with the development of the long idle water

Id. at 3.

power resources of the nation” by creating “a complete

scheme of national regulation.” Id. at 171, 180.

In issuing licenses, FERC is required to

consider a range of factors affecting the public interest

in all aspects of the development of a waterway,

including water quality, and to attach appropriate

conditions to protect the environment. See 16 U.S.C.

§§ 797(e), 803(a)(1), 803(j). Hydropower projects are

also subject to the requirements of several

environmental statutes such as the National

Environmental Policy Act, Fish and Wildlife

Coordination Act, Endangered Species Act, Coastal

Zone Management Act, Federal Land Policy and

Management Act, and National Historic Preservation

Act.

In addition, FERC-licensed hydropower

projects are subject to Section 401 of the CWA which

provides a limited delegation of authority to affected

states to review anticipated discharges into navigable

waters and impose conditions necessary to ensure

they will comply with state water quality standards.

Only after issuance of a Section 401 certification (or a

state’s waiver of its certification authority) may FERC

issue the license. FERC is statutorily required to

include any conditions contained in the certification in

the federal license. See PUD No. 1 of Jefferson Cnty.

v. Wash. Dep’t of Ecology, 511 U.S. 700, 722 (1994);

Am. Rivers, Inc. v. FERC, 129 F.3d 99, 110 (2d Cir.

1997). Licensees also must apply for a new Section

401 certification each time the hydropower project is

relicensed and for certain license amendments. See

S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370,

374-75 (2006); Ala. Rivers All. v. FERC, 325 F.3d 290,

292 (D.C. Cir. 2003).

For all federal licensing and permitting actions

triggering Section 401, the state has “a reasonable

period of time (which shall not exceed one year) after

receipt” of the certification request “to act” upon it. 33

U.S.C. § 1341(a)(1).

Otherwise, the Section 401

requirement is waived. Id. The purpose of the waiver

provision “is to prevent a State from indefinitely

delaying a federal licensing proceeding by failing to

issue a timely water quality certification under

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

643 F.3d 963, 972 (D.C. Cir. 2011); see also 115 Cong.

Rec. 9,264 (1969) (statement of Rep. Edmondson

explaining that the waiver provision was intended to

“do away with dalliance or unreasonable delay and to

require a ‘yes’ or ‘no”’ by states to a federally permitted

project).

Hydropower Amici share Petitioners’ interest in

ensuring that states are not able to evade Section

401’s one-year deadline to act on a certification

request and thereby delay federal permitting of

important energy projects. Hydropower Amici further

agree with Petitioners that FERC’s interpretation of

Section 401, upheld by the D.C. Circuit in this case,

would effectively gut the one-year statutory

requirement by allowing a state repeatedly to issue

pro forma letters labeling a certification request

“denied without prejudice” while taking no action on

the merits of the request.

SUMMARY OF ARGUMENT

The question presented—whether a state can

avoid waiving its authority to act on a request for

certification under Section 401, thus rendering

Section 401’s express one-year deadline meaningless,

by issuing annual pro forma denials of certification

“without prejudice” to the refiling of the same

request—is an important federal question that this

Court should resolve.

In enacting Section 401,

Congress established a bright-line, one-year rule for

states to take final action on certification requests.

N.Y. State Dep’t of Env’t Conservation v. FERC, 991

F.3d 439, 447-50 (2d Cir. 2021) (“New York II”); N.Y.

State Dep’t of Env’t Conservation v. FERC, 884 F.3d

450, 455-56 (2d Cir. 2018) (“New York I”). Here, by

repeatedly issuing pro forma documents labeled

“denials” in order to buy the state more time while

failing to address the substance of the Districts’

proposal, the State Water Board failed to take final

action on the certification request by the one-year

deadline. In these circumstances, denial without

prejudice is not action on a certification request, but a

transparent attempt to avoid taking final action as

required by the statute.

Enforcing the bright-line, one-year rule is

critical to ensuring timely federal permitting

decisions, including licensing by FERC of hydropower

projects. Allowing the practice of rote annual denials

without prejudice to resubmission of the same request

would have widespread negative ramifications for the

hydropower industry, as well as other significant

infrastructure projects requiring federal approvals.

Through simple inaction, states will effectively control

the timing of federal permitting decisions and be able

to exercise a “pocket veto” over new proposed projects,

a result directly contrary to Congress’ intent in

Section 401. States also will be able to enact whatever

state law processes they choose to implement their

certification authority and subordinate Section 401’s

one-year rule to the time it takes to complete those

processes. This Court’s review is critical to effectuate

Congress’s purpose in enacting Section 401 and to

restore order and certainty to the FERC hydropower

licensing process.

ARGUMENT

The Court’s Review Is Needed to Address

the Important Federal Question of

Whether Section 401’s One-Year Limit Is

Enforceable To Ensure Timely State

Action On Federally Permitted Projects.

Under Section 401, state certification is deemed

waived if the state “fails or refuses to act” on a request

“within a reasonable period of time (which shall not

exceed one year) after receipt of such request.” 33

U.S.C. § 1341(a)(1). The one-year period for a state’s

action begins on its actual receipt of the request. New

York II, 991 F.3d at 443; New York I, 884 F.3d at 455.

The statutory deadline serves an essential purpose in

federal licensing and permitting: “to limit the amount

of time that a State could delay a federal licensing

proceeding without making a decision on the

certification request.” Alcoa, 643 F.3d at 972.

The U.S. Court of Appeals for the Second

Circuit has held that the one-year statutory deadline

provided in Section 401 is a “bright-line rule,” and the

“absolute maximum” period of time for state action.

New York II, 991 F.3d at 449 (citation omitted); New

York I, 884 F.3d at 455-56. The statute provides no

exceptions to the one-year rule under Section 401.

The principle that one year is the “absolute

maximum” for acting on a Section 401 certification

request also applies with equal force to this case. If

states could extend the one-year deadline for issuing a

final decision on a certification request by a rote

process of denying the request and instructing the

applicant to resubmit the same request if it wants a

Section 401 certification, the statutory deadline would

be rendered meaningless. Hydropower Amici submit

that one year means one year and that a rote denial

with instruction to resubmit the same request does not

constitute “act[ing]” on the request.

The need for this Court to resolve the important

federal question of whether a state may evade Section

401’s one-year deadline via procedural “work arounds”

is highlighted by the petition for certiorari, filed today,

asking this Court to review a decision of the U.S.

Court of Appeals for the Ninth Circuit overturning

FERC waiver orders. Nevada Irrigation District, et al.

v. FERC, No. ______ (U.S. Feb. 6, 2023); Cal. State

Water Res. Control Bd. v. FERC, 43 F.4th 920, 926,

930-32 (9th Cir. 2022) (“State Water Board v. FERC”).

The Ninth Circuit’s decision, like the D.C. Circuit’s

decision here, cannot be reconciled with Section 401’s

one-year limit.

For new proposed projects, the importance of a

timely final, appealable certification decision cannot

be overstated. FERC has established a policy of “two

strikes and you’re out” for original licenses. Under

this policy, FERC will immediately dismiss an

application for an original license after two

certification denials unless the applicant successfully

appeals the initial denial. Moriah Hydro Corp., 173

FERC ¶ 62,132 at P 10 (2020); Barrish & Sorenson

Hydroelectric Corp., 69 FERC ¶ 61,206 (1994). The

stated purpose of the policy is to make the site

available to other applicants if the applicant is unable

to obtain a Section 401 certification for its proposed

project. Barrish, 69 FERC ¶ 61,206 at pp. 61,816-17;

N. Star Hydro Ltd., 58 FERC ¶ 61,266 at p. 61,844

(1992). FERC’s policy does not distinguish between

denials with prejudice and denials without prejudice.

Barrish, 69 FERC ¶ 61,206; see also Moriah, 173

FERC ¶ 62,132 at P 4. Because FERC’s license

application process typically requires years of prefiling consultation with resource agencies, Indian

Tribes, and members of the public, and millions or

tens of millions of dollars in environmental and

engineering studies as well as costs for preparation of

the application itself, 6 FERC’s decision to dismiss a

license application creates risk for years of

investments and work.

Yet, if this Court allows FERC’s orders here to

stand, a state will be able to negate this substantial

investment and “pocket veto” a new proposed project

simply by sitting on its hands and issuing two

See 18 C.F.R. §§ 4.38, 5.5-5.18.

consecutive denials without ever having to address the

merits of the certification request. This is precisely

the type of veto by inaction that Congress intended to

prevent by imposing the one-year deadline in Section

401.

For projects seeking relicensing where the “two

strikes” policy does not apply, 7 a state’s rote “denial

without prejudice” does not allow the federal

permitting process to move forward. Instead, the

federal process remains at a standstill through an

indefinite number of rote denials unless and until the

state decides to make a final merits decision. This

outcome likewise directly contradicts Congressional

intent in Section 401.

II.

This Court’s Review Is Needed To Clarify

That State Law Processes Cannot

Override the CWA One-Year Deadline.

Review by this Court is also needed because this

case implicates a state’s ability to override federal law

through adoption of policies and procedures that make

it impossible to comply with Section 401’s one-year

deadline.

The CWA “anticipates a partnership”

between state and federal governments, “in which

regulatory authority is shared.” Sierra Club v. ICG E.,

LLC, 833 F. Supp. 2d 571, 574 n.1 (N.D. W.Va. 2011)

(citing Arkansas v. Oklahoma, 503 U.S. 91, 101

(1992)). However, a state cannot adopt policies and

FERC’s “two strikes” policy does not apply to relicensing of

existing projects. FPL Energy Me. Hydro LLC, 108 FERC

¶ 61,261 at P 5 n.6 (2004) (citing W. Penn Power Co., 74 FERC

¶ 61,287 at p. 61,913 n.14 (1996)).

procedures that will violate or override the CWA’s oneyear deadline, or purport to justify its failure to meet

the one-year deadline based on state law requirements

that cannot be met within that time frame. Nev.

Irrigation Dist., 171 FERC ¶ 61,029 at P 21, reh’g

denied, 172 FERC ¶ 61,082 (2020), vacated and

remanded by State Water Board v. FERC, 43 F.4th

920; see also Appalachian Voices v. State Water

Control Bd., 912 F.3d 746, 754 (4th Cir. 2019)

(recognizing that while states have broad discretion

when developing criteria for their Section 401

certifications,

the

federal

scheme

imposes

requirements on the state, including procedures for

public notice); New York v. United States, 505 U.S.

144, 167 (1992) (noting “Congress’ power to offer

States the choice of regulating that activity according

to federal standards or having state law pre-empted

by federal regulation.”). To do so would impermissibly

result in the displacement of federal law by state

regulation.

Instead, states can and must conform their

permitting procedures such that they are able to act

on Section 401 applications within one year, rather

than issue repeated denials without prejudice. Yet, in

this case, the State Water Board cited the fact that the

California Environmental Quality Act (“CEQA”)

process was not complete as a basis for its denials

without prejudice. Similarly, the Ninth Circuit’s

decision overturning FERC’s waiver orders in State

Water Board v. FERC relied heavily on the CEQA

process and its requirements as justification for the

State Water Board’s failure to act on the certification

requests by the one-year statutory deadline. See 43

F.4th at 925 (acknowledging California has set up a

regime where it is generally “not feasible for a Section

401 certification to issue within one year”). And

California is not the only state that subjects its

certification decisions to compliance with a

comprehensive state environmental review process.

See, e.g., Wash. Rev. Code, ch. 43.21c (2022); Wash.

Admin. Code § 173-201A-010 et seq. (2022); Or. Rev.

Stat., tit. 36a, ch. 468B (2022); Or. Admin. R. 340-0480005 et seq. (2022); N.Y. Comp. Codes R. & Regs., tit.

6, § 608.9 (2022). Allowing states to avoid Section

401’s one-year deadline by enacting laws that

effectively prevent them from meeting the deadline is

fundamentally inconsistent with the intent of

Congress as reflected in the plain language of Section

401, and would turn the Supremacy Clause of the U.S.

Constitution on its head. U.S. Const. art. VI, cl. 2.

III.

This Court’s Review Is Necessary To

Restore

Order

and

Certainty

Hydropower Licensing.

The problem of some states’ circumvention of

Section 401’s one-year deadline is not new. It has long

been a chronic source of delay in hydropower licensing.

A former FERC Chairman, testifying in a 1997

Congressional oversight hearing to examine, in part,

problems of delay in the FERC relicensing process,

identified Section 401 certification as a significant

constraint on FERC’s ability to speed up the process,

observing that “the [S]ection 401 certification process

is often very time-consuming, despite the intent of the

CWA that a State should act on a certification request

in a year or less.” 8 A few years later, FERC

documented in a 2001 report to Congress addressing

hydroelectric licensing issues that the “most common

cause of long-delayed proceedings is untimely receipt

of state water quality certification.” 9

The D.C. Circuit has observed that “[in 2015],

twenty-seven of the forty-three licensing applications

before FERC were awaiting a state’s water quality

certification, and four of those had been pending for

more than a decade,” concluding that “[b]y shelving

water quality certifications, the states usurp FERC’s

control over whether and when a federal license will

issue.” Hoopa Valley Tribe v. FERC, 913 F.3d 1099,

1104 (D.C. Cir.), cert. denied sub nom. Cal. Trout v.

Hoopa Valley Tribe, 140 S. Ct. 650 (2019) (mem.). The

Congressional Research Service also found that “the

most common cause of delayed hydropower licensing

proceedings is untimely receipt of state water-quality

certifications” under Section 401. Claudia Copeland,

Cong. Research Service, Clean Water Act Section 401:

Background and Issues 6 (July 2, 2015). The split

federal-state approval process can result in “a series of

sequential administrative and State court and Federal

court appeals that [could] kill a project with a death

by a thousand cuts just in terms of the time frames.”

Id. (quoting Natural Gas Symposium; Symposium

Before the S. Comm. On Energy Natural Res., 109th

S. Hrg. 105-381, 105th Cong. 55 (1997) (Prepared Statement

of James J. Hoecker, FERC Chairman).

FERC, Report on Hydroelectric Licensing Policies,

Procedures, and Regulations Comprehensive Review and

Recommendations Pursuant to Section 603 of the Energy Act of

2000, at 5 (May 2001).

Cong. 41 (2005)). That is because delay can suspend

the development of projects and jeopardize their

funding.

Despite these complaints of FERC and others,

by holding that repeated denials without prejudice to

refile the same certification request comply with

Section 401’s one-year rule, FERC’s orders here, if

allowed to stand, would virtually ensure that the

pattern of delay in hydroelectric licensings will

continue. As the Petition points out (at 14-15), FERC’s

counsel conceded at oral argument that under FERC’s

statutory interpretation a state could delay acting on

the merits of a request for certification for 100 years

or more without running afoul of Section 401’s oneyear rule. This gives carte blanche to any state that

wishes to do so to ignore Section 401’s time limit on

state action. And a number of states, for example,

Maine, New York, Vermont, Massachusetts, and

Washington are, in fact, utilizing the procedural

device of denial without prejudice in an attempt to

avoid having to act on certification requests within one

year.

Any court-sanctioned exception to the brightline rule requiring a state to act on a petition within a

year would render the statutory deadline

meaningless. That is why the Second Circuit affirmed

FERC’s waiver finding even where the state water

quality agency sought an extension of only 36 days.

New York II, 991 F.3d 439. Moreover, allowing rote

denials without prejudice to qualify as an “act” under

Section 401 would institutionalize a state practice of

avoiding the one-year deadline, and result in state

veto by inaction of any new project proposal under

FERC’s “two strikes” policy. While FERC appears

willing to throw up its hands, ceding control over its

licensing process to the states, that outcome is

unacceptable to the hydropower industry and contrary

to both Congress’s intent and the national interest in

promoting important renewable energy projects.

Allowing FERC’s orders to stand here would

remove the regulatory certainty needed to maintain

investment dollars and schedules associated with

highly complex infrastructure projects. Hydropower

projects often require numerous permits and reviews

at the federal, state, and local levels—requiring

precise planning and scheduling to keep a project on

track for regulatory permitting, financing, and

ultimate development. Delays and their associated

costs can be fatal to unconstructed projects because

the projects are not yet generating revenues to cover

those costs. In the context of license reissuance for

existing projects, such delays hamper the

implementation

proposed

environmental

improvements and upgrades. Regulatory delays in

FERC hydropower licensing create hardships in light

of “congressional recognition that significant capital

investments cannot be made in hydro power projects

without the certainty and security of a multi-decade

license.” Alcoa, 643 F.3d at 970.

FERC’s orders threaten to bring new

hydropower development in this country to a

standstill at the time it is most needed to further

national energy goals and climate-change policy, and

to delay indefinitely the significant public benefits

achieved in license renewals for the existing fleet of

FERC-licensed projects. It is imperative to the

hydropower industry that the bright-line rule be

preserved and held to apply in the current case.

CONCLUSION

For the reasons set forth above, Hydropower

Amici respectfully request that the Court grant the

Districts’ petition for certiorari.

Respectfully submitted,