Petition for Writ of Certiorari — Nevada Irrigation District, et al., Petitioners v. California State Water Resources Control Board, et al.
Supreme Court briefFeb 6, 2023
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APPENDIX
TABLE OF APPENDICES
APPENDIX A: Opinion, Cal. State Water Res.
Control Bd. v. FERC, No. 20-72432 (9th Cir.
Aug. 4, 2022) ......................................................
Page
1a
APPENDIX B: Order on Waiver of Water Quality Certification, Nev. Irrigation Dist., 171
FERC ¶ 61029 (2020) ........................................ 31a
APPENDIX C: Order Addressing Arguments
Raised on Rehearing, Nev. Irrigation Dist.,
172 FERC ¶ 61082 (2020) ................................. 47a
APPENDIX D: Order on Waiver of Water Quality Certification, Yuba Cnty. Water Agency,
171 FERC ¶ 61139 (2020) ................................. 53a
APPENDIX E: Order Denying Rehearing, Yuba
Cnty. Water Agency, 172 FERC ¶ 61080
(2020) ................................................................. 72a
APPENDIX F: Opinion on Waiver of Water
Quality Certification, Merced Irrigation Dist.,
171 FERC ¶ 61240 (2020) ................................. 77a
APPENDIX G: Notice of Denial of Rehearings
by Operation of Law, Merced Irrigation Dist.,
172 FERC ¶ 62098 (2020) ................................. 98a
APPENDIX H: Order Denying Rehearing and
Rehearing En Banc, Cal. State Water Res.
Control Bd. v. FERC, No. 20-72432 (9th Cir.
Oct. 7, 2022) ....................................................... 99a
APPENDIX I: 33 U.S.C. § 1341. Certification ..... 103a
APPENDIX J: 18 C.F.R. § 4.34 Hearings on applications; consultation on terms and conditions; motions to intervene; alternative procedures................................................................... 109a
1a
APPENDIX A
43 F.4th 920
UNITED STATES COURT OF APPEALS,
NINTH CIRCUIT
————
No. 20-72432, No. 20-72452, No. 20-72782,
No. 20-72800, No. 20-72958, No. 20-72973
————
CALIFORNIA STATE WATER
RESOURCES CONTROL BOARD,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
NEVADA IRRIGATION DISTRICT,
Intervenor.
SOUTH YUBA RIVER CITIZENS LEAGUE; CALIFORNIA
SPORTFISHING PROTECTION ALLIANCE; FRIENDS OF THE
RIVER; MOTHER LODE CHAPTER OF THE SIERRA CLUB,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
NEVADA IRRIGATION DISTRICT,
Intervenor.
CALIFORNIA STATE WATER
RESOURCES CONTROL BOARD,
Petitioner,
2a
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
YUBA COUNTY WATER AGENCY,
Respondent-Intervenor.
SOUTH YUBA RIVER CITIZENS LEAGUE; CALIFORNIA
SPORTFISHING PROTECTION ALLIANCE; FRIENDS OF THE
RIVER; MOTHER LODE CHAPTER OF THE SIERRA CLUB,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
YUBA COUNTY WATER AGENCY,
Respondent-Intervenor.
CALIFORNIA STATE WATER
RESOURCES CONTROL BOARD,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
MERCED IRRIGATION DISTRICT,
Respondent-Intervenor.
CALIFORNIA SPORTFISHING PROTECTION ALLIANCE;
FRIENDS OF THE RIVER; SIERRA CLUB AND
ITS TEHIPITE CHAPTER,
Petitioners,
v.
3a
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
MERCED IRRIGATION DISTRICT,
Respondent-Intervenor.
————
Argued and Submitted May 12, 2022
Pasadena, California
Filed August 4, 2022
————
On Petition for Review of an Order of the
Federal Energy Regulatory Commission,
FERC Nos. 2266-102, 2266-118,
FERC No. 2246-086, FERC Nos. 2179-043,
2467-020, 2179-048, 2467-022, FERC No. 2179-043
————
OPINION
FRIEDLAND, Circuit Judge:
Section 401 of the Clean Water Act gives states the
authority to impose conditions on federal licenses for
hydroelectric projects to ensure that those projects
comply with state water quality standards. In these
consolidated cases, we consider several petitions for
review of decisions by the Federal Energy Regulatory
Commission (“FERC”) holding that the California
Water Resources Control Board (the “State Board” or
“State Water Board”) waived that authority for certain
hydroelectric projects in federal relicensing proceed
The Honorable Carol Bagley Amon, United States District
Judge for the Eastern District of New York, sitting by
designation.
4a
ings. FERC found that the State Board had engaged
in coordinated schemes with the Nevada Irrigation
District, the Yuba County Water Agency, and the
Merced Irrigation District (collectively, the “Project
Applicants”) to delay certification and to avoid making
a decision on their certification requests. FERC held
that, because of that coordination, the State Board had
“fail[ed] or refuse[d] to act” on the requests and had
therefore waived its certification authority. See 33
U.S.C. § 1341(a)(1). We hold that FERC’s findings of
coordination are unsupported by substantial evidence.
We therefore grant the petitions for review and vacate
FERC’s orders.
I.
A.
The Clean Water Act provides that “[i]t is the policy
of the Congress to recognize, preserve, and protect
the primary responsibilities and rights of States” to
“prevent, reduce, and eliminate pollution” and to
“plan the development and use (including restoration,
preservation, and enhancement) of land and water
resources.” 33 U.S.C. § 1251(b). To achieve those goals,
Congress has enacted a scheme of cooperative federalism that gives states an important role in regulating
water quality. “The states remain, under the Clean
Water Act, the ‘prime bulwark in the effort to abate
water pollution.’” Keating v. FERC, 927 F.2d 616, 622
(D.C. Cir. 1991) (quoting United States v. Puerto Rico,
721 F.2d 832, 838 (1st Cir. 1983)).
As relevant here, Section 401 of the Clean Water Act
“requires States to provide a water quality certification before a federal license or permit can be issued
for activities that may result in any discharge into
intrastate navigable waters.” PUD No. 1 of Jefferson
5a
Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 707, 114
S.Ct. 1900, 128 L.Ed.2d 716 (1994) (citing 33 U.S.C.
§ 1341). States may adopt water quality standards
that are more stringent than federal law requires, and
any limitation included in the state certification
becomes a condition on any federal license. Id. at 705,
708, 114 S.Ct. 1900. That certification process is “essential in the scheme to preserve state authority to
address the broad range of pollution” that might affect
water quality. S.D. Warren Co. v. Me. Bd. of Env’t
Prot., 547 U.S. 370, 386, 126 S.Ct. 1843, 164 L.Ed.2d
625 (2006).
To prevent a state from “indefinitely delaying a
federal licensing proceeding by failing to issue a timely
water quality certification,” Section 401 includes a
deadline by which the state must act to avoid waiving
its certification authority. Alcoa Power Generating Inc.
v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011). The
relevant statutory language reads:
If the State ... fails or refuses to act on a request
for certification, within a reasonable period of
time (which shall not exceed one year) after
receipt of such request, the certification requirements of this subsection shall be waived with
respect to such Federal application. No license or
permit shall be granted until the certification
required by this section has been obtained or has
been waived as provided in the preceding sentence. No license or permit shall be granted if
certification has been denied by the State.
33 U.S.C. § 1341(a)(1). FERC, through regulations
governing hydropower licensing proceedings and through
agency adjudication, has interpreted the “reasonable
period of time” for action under Section 401 to be the
statutory maximum of one year from the receipt of the
6a
request. 18 C.F.R. §§ 4.34(b)(5)(iii), 5.23(b)(2); Const.
Pipeline Co., 162 FERC ¶ 61,014, at P 16 (Jan. 11,
2018).
The consequences of a waiver are potentially
significant. Federal licenses for hydroelectric projects
can last up to fifty years, and the default term is forty
years.1 16 U.S.C. § 799; Policy Statement on Establishing License Terms for Hydroelectric Projects, 82 Fed.
Reg. 49501, 49503 (Oct. 26, 2017). Accordingly, if a
state waives its authority to impose conditions on a
hydroelectric project’s federal license through Section
401’s certification procedure, that project may be
noncompliant with prevailing state water quality
standards for decades.
California’s criteria for issuing water quality certifications often make it impracticable for a certification
to issue within one year of a project applicant’s submitting its request. The main cause of delay appears to be
California’s requirement, pursuant to the California
Environmental Quality Act (“CEQA”), that the State
Board receive and consider an analysis of a project’s
environmental impact before granting a certification
request.2 See Cal. Pub. Res. Code § 21100(a) (requiring
1
If a project’s initial license expires while the relicensing
process is ongoing, FERC may issue annual, interim licenses
under the same terms and conditions as the initial license. 16
U.S.C. § 808(a)(1); 18 C.F.R. § 16.18.
2
After FERC issued the waiver orders challenged here, the
California legislature authorized the State Board to issue
certifications before completion of CEQA review where failure to
issue the certification “poses a substantial risk of waiver of the
state board’s certification authority” under Section 401. Cal.
Water Code § 13160(b)(2); see also 2020 Cal. Stat. 1379. The new
provision directs the State Board, “[t]o the extent authorized by
federal law,” to “reserve authority to reopen and ... revise the
certificate” as necessary after CEQA review is eventually
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completion of “an environmental impact report on any
project ... that may have a significant effect on the
environment”); Cal. Code Regs. tit. 23, § 3856(f) (“[T]he
[Section 401] certifying agency shall be provided with
and have ample time to properly review a final copy of
valid CEQA documentation before taking a certification action.”). California law assigns a “lead agency”
(here, the Project Applicants) to prepare the CEQA
evaluation and designates a “responsible agency”
(here, the State Board) that must “consider[] the
[evaluation] prepared by the lead agency” and decide
“whether and how to approve the project involved.”3
Cal. Code Regs. tit. 14, § 15096(a). For complex
projects like the ones at issue here, the CEQA process
itself can often take more than a year to complete. If
the materials required for CEQA are not submitted
until late in the State Board’s Section 401 review
period, the State Board is unlikely to be ready to issue
a certification within the one-year deadline. 4 If the
completed. Cal. Water Code § 13160(b)(2). Because that
amendment took effect after the events at issue here, it has no
bearing on our analysis.
3
In cases like ours, where the project applicant is a public
agency, the project applicant is the “lead agency” that must
complete the CEQA evaluation. By contrast, in cases where the
project applicant is a private entity, the State Board is both the
“lead agency” and the “responsible agency” and, accordingly,
must complete the CEQA process itself. See Cal. Code Regs. tit.
14, § 15051.
4
FERC used to “deem the one-year waiver period to commence
when the certifying agency found the request acceptable for
processing,” but it has since departed from that interpretation.
See California ex rel. State Water Res. Control Bd. v. FERC, 966
F.2d 1541, 1552 (9th Cir. 1992). Apparently as a result, submitting a Section 401 certification request in California does not
require the project applicant to provide all the materials that the
State Board will eventually need for final approval.
8a
project applicants do not give the State Board a
sufficient opportunity to “receive and properly review
the necessary environmental documentation” under
CEQA by the end of the review period, California
regulations require the State Board to “deny without
prejudice certification ... unless the applicant in writing withdraws the request for certification.” Id. tit. 23,
§ 3836(c).
Because it is often not feasible for a Section 401
certification to issue within one year of its submission,
a practice has developed over the last several
decades—in California and in other states—whereby
project applicants withdraw their requests for certification before the end of the one-year review period
and resubmit them as new requests, rather than have
their original requests denied. The theory behind this
practice is that a withdrawn-and-resubmitted request
starts a new one-year review period, affording the
project applicant more time to comply with procedural
and substantive prerequisites to certification and
the state more time to decide whether and under what
conditions it will grant the certification request.
Although FERC expressed misgivings in some orders
that withdrawal-and-resubmission could lead to delays
in federal licensing, FERC accepted the withdrawaland-resubmission practice for many years. See, e.g.,
Barrish & Sorenson Hydroelectric Co., 68 FERC
¶ 62,161, 64,258 (Aug. 12, 1994) (noting that the
applicant “withdrew and refiled” its Section 401
request the day before the one-year review deadline);
Bradwood Landing LLC, 126 FERC ¶ 61,035, at P 24
n.26 (Jan. 15, 2009) (observing that the project
applicant’s withdrawal-and-resubmission of its request for certification from the state of Oregon
“restarted the statutory one-year period” for the state
certifying agency); Const. Pipeline Co., 162 FERC
9a
¶ 61,014, at P 23 (Jan. 11, 2018) (“We reiterate that
once an application is withdrawn, no matter how
formulaic or perfunctory the process of withdrawal
and resubmission is, the refiling of an application
restarts the one-year waiver period under section
401(a)(1).”), reh’g denied, 164 FERC ¶ 61,029, at P 17
(July 19, 2018) (reaffirming that conclusion).
In 2019, however, the D.C. Circuit held that
California and Oregon had waived their certification
authority by entering a formal contract with a project
applicant to delay federal licensing proceedings
through the continual withdrawal-and-resubmission
of the applicant’s certification requests. Hoopa Valley
Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019). The
court held that the states’ engagement in a
“coordinated withdrawal-and-resubmission scheme”
constituted a “failure” or “refusal” to act under the
meaning of Section 401. Id. at 1104–05. In response to
Hoopa Valley, FERC changed its position. In a series
of orders, including those at issue here, FERC
concluded that states had waived their Section 401
certification authority by coordinating with project
applicants on the withdrawal-and-resubmission of
Section 401 certification requests, even in the absence
of an explicit contractual agreement to do so.
B.
These petitions for review challenge three orders
issued by FERC holding that California waived its
authority to issue water quality certifications for the
Yuba-Bear Project (operated by the Nevada Irrigation
District 5 ), the Yuba River Project (operated by the
Yuba County Water Agency), and the Merced River
5
The word “Nevada” in Nevada Irrigation District refers to
Nevada County, California.
10a
and Merced Falls Projects (together, the “Merced
Projects”) (operated by the Merced Irrigation District).
We now summarize the relevant facts underlying each
of those three orders.
1.
In 1963, FERC issued the Nevada Irrigation District
(“NID”) a fifty-year license to operate the Yuba-Bear
Hydroelectric Project on the Middle Yuba, South
Yuba, and Bear Rivers, in Sierra, Placer, and Nevada
Counties, California. In 2011, two years before the
license expired, NID applied for a renewal of the
license, as required by statute. The relicensing
application is still pending, 6 and since the original
license expired in 2013, NID has operated the YubaBear Project on interim, annual licenses under the
original license terms. 7 Because FERC licensed the
Yuba-Bear Project before the enactment of Section
401, those interim licenses are not subject to stateimposed conditions under a Section 401 water quality
certification.
On March 15, 2012, NID submitted a request for
water quality certification to the State Board. The
request stated that “NID intends to be the Lead
Agency for the purpose of compliance with the requirements of [CEQA], and will coordinate with the [State]
Board and other responsible agencies.” The State
Board acknowledged receipt of the request, confirmed
that the request met the state’s filing requirements,
and notified NID that the request was pending before
6
Licensing, Federal Energy Regulatory Commission, http://
www.ferc.gov/licensing (follow hyperlink entitled “Pending
License, Relicense, and Exemption Applications” (updated July
15, 2022)).
7
See supra note 1.
11a
the State Board. The State Board reminded NID that,
“[a]lthough a final CEQA document is not required for
[a] complete application for certification, CEQA
requirements must be satisfied before the State Water
Board can issue certification.”
NID apparently never prepared the CEQA evaluation required by California regulations. According to a
status report sent by the State Board to FERC, the
State Board was still “[a]waiting commencement of
[the] CEQA process by [NID]” as of December 2019,
more than seven years after NID submitted its initial
certification request.
On March 1, 2013—two weeks before the State
Board’s deadline to act on the certification request—
NID filed a letter with the State Board withdrawing
and resubmitting its application for water quality
certification. NID reiterated its intent to act as the
lead agency for CEQA purposes. The State Board
acknowledged receipt of the withdrawal-and-resubmission and stated: “The new deadline for certification
action is February 28, 2014.”
Soon after, FERC issued a draft of its own environmental impact statement, as required by federal
law. The draft noted NID’s withdrawal-and-resubmission and the State Board’s new February 2014 deadline to act on the certification request. The State Board
submitted comments on the draft, including both substantive comments on various water quality concerns
and comments attempting to clarify the expected
timeline for a Section 401 certification. The latter set
of comments stated:
The CEQA process has not started, and will not be
finished by the spring of 2014. The most likely
action will be that the Licensees will withdraw
12a
and resubmit their respective applications for
water quality certification before the one year
deadline if the State Water Board is not ready to
issue its water quality certifications. Otherwise,
the State Board will deny certification without
prejudice.
As noted above, NID never prepared a CEQA
evaluation. Instead, it continued to withdraw and
resubmit its certification request each year, for the
five years between 2014 and 2018. In response to each
withdrawal-and-resubmission, the State Board acknowledged receipt and conveyed the new deadline for
certification action.
In 2019, on the day the D.C. Circuit decided Hoopa
Valley, the State Board denied without prejudice
NID’s last request for Section 401 certification. In the
letter notifying NID of the denial, the State Board
explained that “[w]ithout completion of the CEQA
process, the State Water Board cannot issue a
certification.” NID then sought a declaratory order
from FERC that the State Board had waived its
Section 401 certification authority.
FERC granted NID’s request, holding that the State
Board had waived its certification authority for the
Yuba-Bear Project. FERC reasoned that, although
Hoopa Valley had involved a formal contract between
the parties to defer certification and delay federal
licensing proceedings, “an explicit agreement to withdraw and refile is not necessary” to a finding of waiver.
Rather, evidence of a “functional agreement” or evidence of “the state’s coordination with the licensee”
would suffice to show that the state had “fail[ed] or
refuse[d] to act” under Section 401. Turning to the
evidence in the instant case, FERC first noted that
the State Board had consented to NID’s decision to
13a
continually withdraw and resubmit its certification
requests rather than issue a denial. As evidence of the
State Board’s coordination in a withdrawal-and-resubmission scheme, FERC pointed to the State Board’s
comments on FERC’s draft environmental impact
statement, quoted above, describing the State Board’s
expectation that NID would withdraw and resubmit
its request. FERC also asserted that California regulations “codify” the withdrawal-and-resubmission practice. Finally, FERC found it “[t]elling[]” that the State
Board had “failed to dispute NID’s repeated statements” in its withdrawal-and-resubmission letters
that “the Board had all of the information it needed
to act.”
2.
The administrative record underlying FERC’s Yuba
River Project order is similar to the record from the
Yuba-Bear Project. In 1963, FERC issued the Yuba
County Water Agency (“YCWA”) a fifty-year license to
operate the Yuba River Development Project on the
Yuba, North Yuba, and Middle Yuba Rivers in Sierra,
Yuba, and Nevada Counties. YCWA filed an application for a new license in June 2017. As with the YubaBear Project, the Yuba River Project has been operating under interim, annual licenses while its relicensing application is pending, and those interim licenses
are not subject to state-imposed Section 401
conditions.8
On August 24, 2017, YCWA submitted a request
for water quality certification to the State Board
and affirmed its role as the lead agency for CEQA
compliance. The State Board acknowledged receipt of
8
See supra notes 1 & 6.
14a
the request and stated that the deadline for certification action was one year later.
On July 25, 2018, a month before the end of the oneyear review period, a member of the State Board’s staff
emailed YCWA to remind it of the upcoming deadline.
The email stated:
YCWA’s water quality certification action date for
the Yuba River Development Project (FERC No.
2246) is August 24, 2018. A final CEQA document
for the Project has not been filed; therefore, the
State Water Board cannot complete the environmental analysis of the Project that is required for
certification.
Please submit a withdraw/resubmit of the certification application as soon as possible. Let me
know if you have any questions.
YCWA responded that it planned to submit the
withdrawal-and-resubmission letter on August 20.
The State Board staff member replied: “My management usually gets a little antsy when our action date
gets below 3 weeks because a ‘deny without prejudice’
letter takes time to route to our Executive Director. If
possible, please submit the letter by next Friday.”
On August 3, 2018, YCWA filed a withdrawaland-resubmission letter with the State Board, reiterating its intent to act as the lead agency for CEQA
purposes. The State Board acknowledged receipt of
the withdrawal-and-resubmission letter and stated:
“The new deadline for certification action is August 3,
2019.”
Like NID, YCWA apparently never prepared a
CEQA evaluation. A State Board status report to
FERC indicated that it was still “[a]waiting com-
15a
mencement of [the] CEQA process by YCWA” in
December 2019. After the D.C. Circuit decided Hoopa
Valley, the State Board denied without prejudice
YCWA’s resubmitted request for certification, relying
on YCWA’s failure to begin the CEQA process. YCWA
then sought a declaratory order from FERC that the
State Board had waived its Section 401 certification
authority.
FERC concluded that the State Board had waived
its certification authority for the Yuba River Project,
employing essentially the same reasoning as in its
Yuba-Bear Project order. This time, FERC found evidence of coordination in the email exchange between
the State Board’s staff member and YCWA, reasoning
that YCWA’s “withdrawal and refiling of its application was in response to the [State] Board’s request that
it do so.” FERC asserted that “[t]he coordination”
demonstrated by that exchange “alone [was] sufficient
evidence that the [State] Board sought the withdrawal
and resubmittal of the Yuba River application to
circumvent the one-year statutory deadline for the
state agency to act.” As in the Yuba-Bear Project order,
FERC also pointed to California’s “codification” of the
withdrawal-and-resubmission practice in its regulations and to the State Board’s failure to “dispute Yuba
County’s statements that ... the [State] Board had all
of the information it needed to act.”
3.
The administrative record underlying FERC’s Merced
Projects order resembles the administrative records
from the Yuba-Bear and Yuba River Projects. In 1963
and 1969, respectively, FERC issued licenses to the
Merced Irrigation District (“MID”) to operate the
Merced River Hydroelectric Project for a fifty-year
term and to its predecessor licensee, Pacific Gas and
16a
Electric Company (“PG&E”), to operate the Merced
Falls Hydroelectric Project for a forty-five-year term.
The Merced Projects are located on the Merced River
in Merced and Mariposa Counties. As with the YubaBear and Yuba River Projects, the Merced Projects are
currently operating under interim, annual licenses
while relicensing is pending.9
On May 20 and May 21, 2014, MID and PG&E 10
submitted to the State Board requests for water
quality certifications for the Merced Projects. The
State Board acknowledged receipt of the requests,
conveyed the one-year deadline for action, and warned
that, “[i]f the information necessary for compliance
with CEQA is not provided to the State Water Board,
staff may recommend denial of certification without
prejudice.”
In April 2015, one month before the original oneyear deadline, a State Board member emailed MID to
remind it of the upcoming deadline. The email stated:
Merced Irrigation District’s application for water
quality certification for the Merced River Hydroelectric Project, FERC Project No. 2179[,] expires
on May 21, 2015. Please withdraw the [sic] and
simultaneously resubmit an application for water
quality certification prior to May 13, 2015. If you
have any questions regarding this request or this
process, please feel free to contact me. Please
9
See supra notes 1 & 6.
10
PG&E transferred its license for the Merced Falls Project
to MID in 2017, making MID the applicant in the relicensing
proceeding before FERC. For the Merced Falls Project, between
the initial certification request in 2014 and the license transfer
in 2017, it was the State Board—not PG&E—that was the lead
agency for the purpose of CEQA compliance.
17a
respond by email verifying receipt of this
correspondence.
MID apparently never prepared the CEQA evaluation required by California regulations—the State
Board said in a status report to FERC that it was still
“[a]waiting commencement of [the CEQA] process” for
both Merced Projects in December 2019. Instead, each
year between 2015 and 2018, MID and PG&E withdrew and resubmitted their water quality certification
requests before the expiration of the State Board’s oneyear period of review. In response, the State Board
acknowledged receipt of the withdrawal-and-resubmission letters, conveyed the new deadlines for certification action, and warned that failure to comply with
CEQA could result in denial of certification without
prejudice.
After the D.C. Circuit decided Hoopa Valley, the
State Board denied without prejudice MID’s resubmitted requests for certification, relying on MID’s failure
to comply with CEQA. MID then sought a declaratory
order from FERC that the State Board had waived its
Section 401 certification authority.
FERC concluded that the State Board had waived
its certification authority for the Merced Projects,
again using nearly identical reasoning as in its YubaBear Project and Yuba River Project orders. In particular, FERC pointed to “the four years of the
applicants[’] withdrawing and resubmitting their
applications” and to the April 2015 email from the
State Board staff member to MID as evidence that the
State Board had engaged in a coordinated scheme
to continually reset its one-year deadline and avoid
taking action on the certification request. As in the
other orders, FERC noted that California’s regulations
“codify” the withdrawal-and-resubmission practice
18a
and highlighted the State Board’s failure to “request
additional information regarding the [Section 401
requests.]”
***
In sum, in all three challenged orders, FERC held
that the Project Applicants’ withdrawals-and-resubmissions of their Section 401 certification requests did
not restart the State Board’s one-year review clock
because the State Board “coordinated” with the Project
Applicants in a scheme to avoid deciding the request
within the statutory deadline.
The State Board and various environmental organizations timely petitioned our court for review of all
three orders.
II.
“We review FERC decisions to determine whether
they are ‘arbitrary, capricious, an abuse of discretion,
unsupported by substantial evidence, or not in
accordance with the law.’” California ex rel. Harris v.
FERC, 784 F.3d 1267, 1272 (9th Cir. 2015) (quoting
Cal. Dep’t of Water Res. v. FERC, 341 F.3d 906, 910
(9th Cir. 2003)). “[S]ubstantial evidence constitutes
more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. If the evidence is
susceptible of more than one rational interpretation,
we must uphold [FERC’s] findings.” Fall River Rural
Elec. Coop. v. FERC, 543 F.3d 519, 525 (9th Cir. 2008)
(second alteration in original) (quoting Bear Lake
Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir.
2003)). Although we must accept reasonable inferences drawn by an agency, “[s]ubstantial evidence
cannot be based upon an inference drawn from facts
which are uncertain or speculative and which raise
19a
only a conjecture or a possibility.” Woods v. United
States, 724 F.2d 1444, 1451 (9th Cir. 1984).
III.
As noted above, FERC changed its position on
withdrawal-and-resubmission following the D.C. Circuit’s decision in Hoopa Valley. Hoopa Valley concerned a series of dams along the Klamath River
in California and Oregon that were operated by
PacifiCorp pursuant to a federal license. 913 F.3d
1099, 1101 (D.C. Cir. 2019). As PacifiCorp’s license
was due to expire, PacifiCorp asked FERC to relicense
the upper dams and decommission the lower dams. Id.
PacifiCorp requested Section 401 certifications from
California and Oregon. Id. While those requests were
pending, a consortium of parties—including PacifiCorp,
the two states, and various other interested groups—
entered negotiations to address certain risks associated with decommissioning the lower dams. Id. Those
negotiations culminated in a formal agreement, in
which the states promised that they would not take
any action on the certification requests and PacifiCorp
promised to withdraw and resubmit them annually as
necessary to preserve the states’ certification authority. Id. at 1101–02. The goal of that arrangement was
to pause federal licensing proceedings until PacifiCorp
had satisfied various preconditions for decommissioning specified in the agreement, including adopting
interim environmental measures and securing federal
funds for the project. Id. Pursuant to the agreement,
PacifiCorp’s water quality certification requests remained undecided by California and Oregon even
though they “ha[d] been complete and ready for review
for more than a decade.” Id. at 1105.
The Hoopa Valley Tribe, which was not a party to
the contractual agreement and whose reservation is
20a
downstream of the dams, petitioned FERC for a
declaratory order that California and Oregon had
waived their Section 401 certification authority. Id. at
1102. FERC declined to find a waiver, id., in keeping
with its long-held position that the withdrawal-andresubmission procedure restarted a state’s one-year
review period. The D.C. Circuit disagreed, concluding
that California and Oregon had demonstrated “deliberate and contractual idleness” by “shelving water
quality certifications” pursuant to the “coordinated
withdrawal-and-resubmission scheme” required by
the parties’ contractual agreement. Id. at 1104–05.
Accordingly, the court held that the states had failed
or refused to act on the certification requests within
one year and had therefore waived their certification
authority under Section 401. Id.
Following Hoopa Valley, FERC began finding waiver
in many cases where project applicants had withdrawn and resubmitted certification requests. FERC
has applied Hoopa Valley not only to cases involving
express agreements to delay certification through
withdrawal-and-resubmission, like the agreement at
issue in Hoopa Valley itself, but also to cases involving
what FERC has deemed more informal, coordinated
schemes. E.g., McMahan Hydroelectric, LLC, 168
FERC ¶ 61,185, at P 37 (Sept. 20, 2019), vacated by
N.C. Dep’t of Env’t Quality v. FERC (NCDEQ), 3 F.4th
655 (4th Cir. 2021); Placer Cnty. Water Agency, 167
FERC ¶ 61,056, at P 12 (Apr. 18, 2019).
In defining its standard for waiver, FERC draws a
line between a “coordinated” scheme and a “unilateral”
withdrawal-and-resubmission by the project applicant. In its brief to our court, FERC takes the position
that “an applicant’s unilateral withdrawal and resubmittal is not imputed to the State” and therefore
21a
does not trigger a waiver. Ordinarily, FERC acknowledges, “[o]nce an applicant withdraws a request, it is
not clear that the State retains power to act on it”; the
withdrawal of the request removes it from the state’s
consideration, and the resubmission of the certification request begins a new one-year review period.
Accordingly, where the evidence shows that the state
has merely acquiesced in a project applicant’s own
decision to withdraw and refile—and, especially,
where the state would have no discernible motive
for attempting to procure a withdrawal-and-resubmission—FERC’s position is that the state has not
waived its certification authority. See, e.g., Village of
Morrisville, 174 FERC ¶ 61,141, at P 22 (Feb. 24, 2021)
(“[The Vermont certifying agency’s] mere acceptance
of Morrisville’s requests to withdraw and refile is not
evidence of a functional agreement between the
parties with the motivation to restart the one-year
clock.”), modifying on reh’g 173 FERC ¶ 61,156 (Nov.
19, 2020).
By contrast, FERC contends that “where the State
coordinates in an applicant’s withdrawal of its
request, the State has affirmatively ‘fail[ed] or
refus[ed] to act’ on it within one year,” and thus waived
its Section 401 certification authority. FERC emphasizes that “it is a State’s efforts to avoid the one-year
deadline by way of withdrawal and resubmittal that
reflect the ‘State’s dalliance or unreasonable delay.’”
(quoting Hoopa Valley, 913 F.3d at 1104). In other
words, according to FERC, “the dispositive factor” is
whether the state coordinates with the project applicant “to afford itself more time to decide a certification
request.” Under that standard, where the state has
sought a withdrawal-and-resubmission for its own
purposes—perhaps, for example, because it lacks an
adequate basis to deny certification but needs more
22a
time to craft certification conditions—the state has
engaged in a coordinated scheme to avoid the one-year
deadline for action.
We need not decide whether the coordination standard FERC advances is consistent with the text of
Section 401 because we agree with the State Board
and the environmental organizations that FERC’s
findings of coordination are not supported by substantial evidence in the record. 11 Instead, the evidence
shows only that the State Board acquiesced in the
Project Applicants’ own decisions to withdraw and
resubmit their applications rather than have them
denied.12
11
Because the Environmental Protection Agency (“EPA”) is
charged with administering the Clean Water Act, including
Section 401, EPA’s interpretations of the Act, rather than FERC’s,
are entitled to deference under Chevron U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972
(D.C. Cir. 2011). In 2020, after the events at issue here, EPA
promulgated a final rule interpreting the waiver provision in
Section 401 for the first time, and EPA has since proposed a new
rule that would revise and replace the 2020 rule. See 40 C.F.R.
pt. 121 (codifying Clean Water Act Section 401 Certification Rule,
85 Fed. Reg. 42210 (July 13, 2020)); Clean Water Act Section 401
Water Quality Certification Improvement Rule, 87 Fed. Reg.
35318 (proposed June 9, 2022) (to be codified at 40 C.F.R. pts.
121, 122, & 124). We need not consider EPA’s interpretations of
Section 401 because they apply only prospectively and because,
in any event, we do not reach the statutory-interpretation issue.
12
Because we vacate FERC’s orders on substantial-evidence
grounds, we also do not reach the State Board’s arguments that
FERC’s “coordination” standard cannot be applied retroactively
either under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349,
30 L.Ed.2d 296 (1971), or under Montgomery Ward & Co. v. FTC,
691 F.2d 1322 (9th Cir. 1982).
23a
In the Yuba-Bear Project order, FERC relied almost
entirely on comments that the State Board submitted
in response to FERC’s draft environmental impact
statement. As described above, those comments stated:
“The CEQA process has not started .... The most likely
action will be that [NID] will withdraw and resubmit
.... Otherwise, the State Water Board will deny certification without prejudice.” From those comments,
FERC concluded that NID had not “acted voluntarily
and unilaterally” in withdrawing and resubmitting
its certification request because the State Board
“expected NID to withdraw and refile its application.”
Far from showing that the State Board coordinated
a scheme to delay a decision on certification, the State
Board’s comments (which were not even conveyed
directly to NID) show merely that the State Board
predicted that NID would decide to withdraw and
resubmit. The State Board observed that NID had not
started the CEQA process and that, as a result, “[t]he
most likely action” was that NID would withdraw and
resubmit its request. The statement describes the
State Board’s prediction but gives no indication that
the State Board was working to engineer that
outcome. Indeed, the State Board went on to say that
it was fully prepared to “deny certification without
prejudice” if NID took a different course. The
comments do not suggest that the State Board was
motivated to delay certification by way of withdrawaland-resubmission.13
13
FERC speculates in its brief that the State Board might have
preferred withdrawal-and-resubmission because, unlike a denial
without prejudice, the withdrawal-and-resubmission might not
be subject to judicial review in state court. There is no evidence
in the record that the State Board was motivated to avoid judicial
review. And, in any event, the parties have given us no reason to
24a
FERC’s order ignored the import of other evidence
in the record that furnishes crucial context: It was NID
that had failed to comply with CEQA, and thus it was
NID—not the State Board—that apparently had a
motive for delay. If, conversely, NID had complied
with its legal obligations under state law, then statements like those quoted above might suggest that the
State Board was seeking to extend its own decisionmaking window by instructing NID to withdraw and
resubmit the application. Here, though, the comments
indicate only that the State Board predicted that NID
would withdraw its application because of NID’s own
failure to comply with CEQA—and that the State
Board would deny the certification request without
prejudice if NID chose not to withdraw it, as state law
would have required, see Cal. Code Regs. tit. 23,
§ 3836(c). In short, the State Board’s comments show
only that it consented to NID’s own decision to
withdraw and resubmit its certification requests.
The evidence supporting FERC’s waiver finding in
the Yuba River Project order is similarly inadequate.
FERC relied almost exclusively on an email exchange
between a member of the State Board’s staff and
YCWA, in which the staff member reminded YCWA
that the “final CEQA document for the Project has not
believe that a state-court challenge to such a denial would have
succeeded, given that the Project Applicants had not submitted
the materials required by CEQA. See Cal. Code Regs. tit. 23,
§ 3836(c) (providing that, in the absence of required CEQA
documentation, “the certifying agency shall deny without prejudice certification for any discharge resulting from the proposed
activity”); Turlock Irrigation Dist., 174 FERC ¶ 61,042, at PP 3133 (Jan. 19, 2021) (noting that state law governs the validity of
the State Board’s action to deny certification pursuant to state
water quality standards), petition for review denied by Turlock
Irrigation Dist. v. FERC, 36 F.4th 1179 (D.C. Cir. 2022).
25a
been filed” and asked YCWA to “[p]lease submit a
withdraw/resubmit of the certification application as
soon as possible.” The staff member noted in a followup email that the reason for the urgency was that “a
‘deny without prejudice’ letter takes time to route to
our Executive Director.”
Considered in context, those emails do not support
FERC’s finding of coordination. Because YCWA had
not complied with CEQA, the State Board could not
grant a Section 401 certification. Cal. Code Regs. tit.
23, § 3836(c). The staff member’s request that YCWA
send a withdrawal-and-resubmission letter merely
reflected his prediction that YCWA would choose the
withdrawal-and-resubmission path rather than have
its certification denied by the Board. After all, the
withdrawal-and-resubmission mechanism had become
a standard practice employed by project applicants
who had not yet complied with CEQA—a practice that
both the State Board and FERC had long accepted.
The follow-up email confirms that understanding. The
State Board was prepared to deny certification but
wanted to prepare such a denial before the deadline if
YCWA chose not to withdraw; from the State Board’s
perspective, withdrawal-and-resubmission and denial
without prejudice were functional substitutes that
would have had the same practical effect. Like the
State Board’s comments on the Yuba-Bear Project, the
State Board’s communication here shows only that the
State Board acquiesced in YCWA’s own decision to
withdraw its requests.
Finally, in the Merced River Project order, FERC
again relied primarily on a single email from the State
Board, which, for similar reasons, cannot support
FERC’s waiver finding. The email asked that MID
“[p]lease withdraw the [sic] and simultaneously resub-
26a
mit an application for water quality certification prior
to” the deadline. 14 Once again, context is critical to
understanding the message: MID had not complied
with its obligation to furnish the CEQA documents
required by state law. For that reason, the State Board
anticipated that MID would withdraw and resubmit
its certification request, as was the common practice,
and accepted MID’s decision to do so. Nothing in the
record suggests that the State Board was unprepared
to deny the requests in accordance with state regulations if MID chose not to withdraw and resubmit, see
Cal. Code Regs. tit. 23, § 3836(c), or that the State
Board had any motive to delay a certification decision
by coordinating a withdrawal-and-resubmission.
Indeed, for all three projects, it seems that the State
Board, unlike the Project Applicants, would have had
an interest in moving along the environmental-review
process. The Project Applicants were operating under
interim, annual licenses that were not subject to stateimposed water quality conditions. See supra notes 1
& 6. Completing the Section 401 certification process
would have allowed the State Board to impose conditions on any eventual new license. The evidence shows
that, for all three projects, the State Board was at least
actively engaged in relicensing proceedings by, for
example, participating in the pre-application process
14
As noted above, see supra note 10, the State Board was the
lead CEQA agency for the Merced Falls Project before PG&E
transferred its license to MID. FERC has not offered a similar
email or any other evidence that might support a waiver determination for the Merced Falls Project; nor has FERC argued that
the State Board’s initial role provides a basis for treating the
Merced Falls Project differently from the Merced River Project.
See United States v. Dreyer, 804 F.3d 1266, 1277 (9th Cir. 2015)
(en banc) (“Generally, an appellee waives any argument it fails to
raise in its answering brief.”).
27a
to design the necessary environmental studies, submitting comments on FERC’s draft environmental
analyses, and providing regular status updates to
FERC on pending certification requests. The Project
Applicants, by contrast, stood to benefit from any
delays because a Section 401 certification likely would
have imposed additional environmental-protection
measures. See Turlock Irrigation Dist. v. FERC, 36
F.4th 1179, 1183 n.6 (D.C. Cir. 2022) (noting that
applicants operating under interim, annual licenses
have “an incentive to delay” because their expired,
decades-old licenses “presumably include[] far fewer
environmental conditions” than current law requires).
FERC’s remaining evidence is no more persuasive.
In all three orders under review, FERC pointed to the
serial withdrawals-and-resubmissions themselves. But,
as FERC’s own position recognizes, “an applicant’s
unilateral withdrawal and resubmittal is not imputed
to the State.” Even under FERC’s interpretation of the
statute, the mere fact that withdrawals-and-resubmissions occurred cannot demonstrate that the State
Board was engaged in a coordinated scheme to delay
certification.
FERC also observed in all three waiver orders
that California’s regulations “codify [the] practice” of
withdrawal-and-resubmission—and, in its brief to our
court, FERC offers those regulations as additional
evidence that the State Board directed the Project
Applicants to withdraw their certification requests.
FERC is wrong to describe California’s regulations as
“prescribing withdrawal as a response to the impending risk of federal waiver.” Those regulations instead
state that, where a project applicant has failed to
comply with CEQA, “the certifying agency shall deny
without prejudice certification for any discharge re-
28a
sulting from the proposed activity unless the applicant
in writing withdraws the request for certification.”
Cal. Code Regs. tit. 23, § 3836(c) (emphasis added).15
The most that can be said about the regulations is that
they acknowledge applicants’ longstanding practice—
accepted by FERC for decades—of withdrawing and
resubmitting Section 401 certification requests to
avoid having them denied for failure to comply with
state environmental-review requirements.
Finally, all three orders also relied on the State
Board’s alleged failure to dispute statements by the
Project Applicants “that the Board had all of the
information it needed” or to request additional information. FERC’s orders mischaracterize the record.
The State Board never disputed that the Project Applicants had met the minimum filing requirements to
submit a Section 401 certification request. But the
State Board continually reminded NID, YCWA, and
MID that it did not have the information it would need
to grant a request—namely, the CEQA evaluation that
California law required, Cal. Code Regs. tit. 23, §
3856(f).
In short, the records in all three orders under review
demonstrate that the Project Applicants chose to
withdraw and resubmit their certification requests
because they had not complied with California’s CEQA
regulations. Without a complete CEQA evaluation, the
State Board was legally obligated to deny the requests
without prejudice, and the record suggests that the
15
As mentioned above, see supra note 2, the California
legislature recently amended state law to permit the State Board
to issue a Section 401 certification without a final CEQA evaluation under certain circumstances. We express no view on how
that amendment might affect the operation of this regulation
going forward.
29a
State Board was prepared to do so. To avoid such a
denial, the Project Applicants employed the common
and long-accepted withdrawal-and-resubmission maneuver, with the State Board’s acquiescence.16 We note
that, if the Project Applicants had preferred not to
undertake withdrawal-and-resubmission, they could
have declined to do so, forced the State Board to deny
their certification requests, and, if they believed the
denials were unwarranted, challenged them in state
court. The Project Applicants chose not to take that
path—and nothing in the record shows that the State
Board encouraged that choice. Under FERC’s own
coordination standard, a state’s mere acceptance of a
withdrawal-and-resubmission is not enough to show
that the state engaged in a coordinated scheme to
avoid its statutory deadline for action. Accordingly,
FERC’s orders cannot stand.
16
Although it appears that, from the State Board’s perspective,
withdrawal-and-resubmission and denial without prejudice were
functionally equivalent, the Project Applicants apparently had
reasons to prefer withdrawal-and-resubmission. At oral argument, FERC suggested that “there are risks that come with a
denial” for the applicant, suggesting that a denial might “affect[]
their investor decisions” and could also “imperil their federal
license.” Oral Argument at 33:01-33:16. The latter concern apparently stems from the fact that a denial without prejudice might
signal to FERC that the project applicant is not diligently pursuing Section 401 certification—which could constitute grounds
for dismissal of the federal licensing application, see Turlock
Irrigation Dist., 174 FERC ¶ 61,042, at PP 37-38 (Jan. 19, 2021).
The Project Applicants confirmed at oral argument that they
preferred to avoid denials without prejudice: “You say denial
without prejudice, but denial is denial no matter what label you
put on it. Then the applicants would have been in the position of
deciding whether they had to appeal or not, if they didn’t appeal,
whether they might be estopped from appealing in the future.”
Oral Argument at 52:50-53:12.
30a
The Fourth Circuit recently reached the same conclusion in a case with similar facts. See NCDEQ,
3 F.4th 655. In that case, FERC had also found waiver
based on email correspondence from the certifying
agency reminding the project applicant of the deadline
for withdrawal-and-resubmission. Id. at 662–64. The
Fourth Circuit vacated FERC’s order, concluding that,
even “[a]ssuming without deciding that a State may
waive its certification authority under [Section] 401 by
coordinating with an applicant in a scheme to defeat
the statutory review period through a process of
withdrawing and resubmitting the certification application,” the correspondence between the certifying
agency and the project applicant was not substantial
evidence of coordination. Id. at 676.
We agree with the Fourth Circuit’s observation in
NCDEQ that “it must take more than routine informational emails to show coordination” because the states’
“rights and responsibilities to ensure compliance with
their own water-quality standards are too important
to be so easily stripped away.” Id. at 675. Because the
default term of a federal license is forty years, a state’s
waiver could result in a hydroelectric project’s being
noncompliant with a state’s standards for decades.
Considering those dramatic consequences, FERC’s
coordination findings cannot rest on such thin evidence as a simple courtesy email reminding an
applicant of an impending deadline.
IV.
For the foregoing reasons, we conclude that FERC’s
orders are not supported by substantial evidence. We
therefore VACATE those orders and REMAND for
further proceedings consistent with this opinion.
31a
APPENDIX B
171 FERC P 61029 (F.E.R.C.), 2020 WL 1895118
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee, and
James P. Danly.
Nevada Irrigation District
Project No. 2266-102
ORDER ON WAIVER OF WATER QUALITY
CERTIFICATION
(Issued April 16, 2020)
1. On February 19, 2019, Nevada Irrigation District
(NID), licensee for the Yuba-Bear Hydroelectric
Project No. 2266 (Yuba-Bear Project), filed a request
for the Commission to determine that the California
State Water Resources Control Board (California
Board or Board) waived its authority under section
401(a)(1) of the Clean Water Act (CWA)1 to issue water
quality certification regarding the relicensing of
the Yuba-Bear Project. This order makes such a
determination.
I. Background
2. On June 24, 1963, the Commission issued NID a
50-year license, effective May 1, 1963, for the YubaBear Project, located on the Middle Yuba, South Yuba,
and Bear Rivers in Sierra, Nevada, and Placer Counties,
1
33 U.S.C. § 1341(a)(1) (2018).
32a
California. On April 15, 2011, NID submitted a timely
application for a new license for the project.
2
3. Section 401(a)(1) of the CWA requires that an
applicant for a federal license or permit to conduct
activities that may result in a discharge into the
navigable waters of the United States, such as NID’s
operation of the Yuba-Bear Project, must provide the
licensing or permitting agency a water quality certification from the state in which the discharge
originates or evidence of waiver thereof.3 If the state
“fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not
exceed one year) after receipt of such request,” then
certification is waived.4 Further, the licensing or
permitting agency may not grant a license or permit
until certification has been granted or waived.5
4. NID requested water quality certification for
relicensing of the Yuba-Bear Project on March 15,
2012, and the California Board received the request on
the same day.6 In its March 29, 2012 acknowledgment
letter, the Board stated that NID is “notified that [its]
2
Nevada Irrigation Dist., 29 F.P.C. 1256 (1963). The license
expired on April 30, 2013. NID continues to operate the project
under an annual license.
3
33 U.S.C. § 1341(a)(1). Section 401(d) provides that a
certification and the conditions contained therein shall become a
condition of any federal license or authorization that is issued. Id.
§ 1341(d). See City of Tacoma, Washington v. FERC, 460 F.3d 53
(D.C. Cir. 2006).
4
33 U.S.C. § 1341(a)(1).
5
Id.
6
NID Request at Appendix B, NID March 15, 2012 Letter to
California Board.
33a
application for certification is pending before the
[California Board].”7
5. On March 1, 2013, NID withdrew and resubmitted its application for water quality certification.8 NID
stated that “[t]he project has not changed, so the April
15, 2011 FERC application, which the Board has on
file, contains all information required for a complete
application for a water quality certificate.”9 In its
March 27, 2013 acknowledgment letter, the Board
stated that “NID’s [March 1, 2013] letter initiates a
one-year deadline from the date it was received for
the [California Board] to act on the request for
certification” and “[t]he new deadline for certification
action is February 28, 2014.”10 The Board did not
dispute that the initial application had been complete.
7
NID Request at Appendix B, California Board March 29, 2012
Letter to NID at 1. The Board acknowledged that NID satisfied
the application filing requirements specified in California Code of
Regulations, Title 23, Section 3856. Although it is clear that a
state agency’s one-year review period begins with the agency’s
receipt of an application for water quality certification and not
from a date that the agency deems the application complete, see
California v. FERC, 966 F.2d 1541, 1552-53 (9th Cir. 1992)
(affirming Commission application of regulation establishing
state agency receipt of certification application as beginning of
one-year review period), the California Board’s statement that
NID’s application met the filing requirements of California Code
of Regulations, Title 23, Section 3856 (Contents of a Complete
Application) precludes any argument on this score. A similar
statement was included in each of the California Board’s
subsequent acknowledgment letters to NID.
8
NID Request at Appendix B, NID March 1, 2013 Letter to
California Board.
9
Id. at 1.
10
NID Request at Appendix B, California Board March 27,
2013 Letter to NID at 1.
34a
6. On May 17, 2013, Commission staff issued a draft
environmental impact statement (EIS) analyzing the
effects of the relicensing.11 The draft EIS noted that
the California Board’s decision on the section 401
water quality certification application was due by
March 1, 2014.12
7. In comments filed on August 22, 2013, the
California Board stated that Commission staff mischaracterized the water quality certification process.
The Board asserted that it “must also comply with the
California Environmental Quality Act (CEQA)” in
order to issue a water quality certification.13 The
Board stated that because the CEQA process would
not be finished by spring 2014, “[t]he most likely action
will be that the [l]icensees will withdraw and resubmit
their respective applications for water quality certifications before the one year deadline if the [Board] is
not ready to issue its water quality certifications.”14
8. On February 21, 2014, NID withdrew and resubmitted its application for water quality certification.15
NID noted that it had amended its license application
on April 18, 2012, but that the project had not changed
11
The draft EIS also analyzed the effects of relicensing
the Drum-Spaulding Hydroelectric Project No. 2310 (DrumSpaulding Project).
12
Commission May 17, 2013 draft EIS (draft EIS) at 7.
13
California Board’s August 22, 2013 Comments on draft EIS
at 1.
14
Id. The Board’s comments refer to the water quality
certification applications for the Yuba-Bear Project and the
Drum-Spaulding Project.
15
NID Request at Appendix B, NID February 21, 2014 Letter
to California Board.
35a
since that time. Accordingly, NID stated that the
Board already had on file “all information required for
a complete application for a water quality certificate.”17 In its March 11, 2014 acknowledgment letter,
the Board stated that “NID’s [February 21, 2014]
letter initiates a one-year deadline from the date it
was received for the [California Board] to act on the
request for certification” and “[t]he new deadline for
certification action is February 21, 2015.”18 The Board
did not dispute NID’s statements that the project had
not changed and that the Board had on file all
necessary information.
16
9. On December 19, 2014, Commission staff issued a
final EIS, which provided staff-recommended measures to be included in any new license that may be
issued for the Yuba-Bear Project.19
10. On February 16, 2015, NID withdrew and resubmitted its application for water quality certification for
the third time.20 Similar to its response to the previous
withdrawal letters, the California Board’s March 18,
2015 letter acknowledged that NID’s application
“initiates a one-year deadline from the date it was
16
Id. at 1. Although the April 18, 2012 amendment application
predates NID’s March 1, 2013 withdrawal and resubmittal of its
water quality certification application, NID did not note the
amended application in its March 1, 2013 letter.
17
Id. at 1.
18
NID Request at Appendix B, California Board March 11,
2014 Letter to NID at 1.
19
The final EIS noted that the California Board had until
February 21, 2015 to act on the request. Commission December
19, 2014 final EIS at 9.
20
NID Request at Appendix B, NID February 16, 2015 Letter
to California Board.
36a
received for the [California Board] to act on the
request for certification” and set February 17, 2016 as
the new deadline.21
11. NID withdrew and resubmitted its water
quality certification application three more times: on
February 9, 2016, February 3, 2017, and January 29,
2018.22
12. On January 25, 2019, the United States Court of
Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an opinion in Hoopa Valley Tribe v.
FERC,23 holding that, where a state and an applicant
agree to repeatedly withdraw and refile the same
water quality certification request, the state has
waived certification.
13. Also on January 25, 2019, the California Board
denied without prejudice NID’s request for water
quality certification, stating that the CEQA process
and consultation under the Endangered Species Act
(ESA) had not been completed, and that “[i]n order to
maintain an active certification application, NID will
need to request certification for the [p]roject.”24 NID
21
NID Request at Appendix B, California Board March 18,
2015 Letter to NID at 1.
22
NID Request at Appendix B: California Board’s March 9,
2016 Letter to NID set February 9, 2017 as the new deadline; the
March 3, 2017 Letter set February 3, 2018 as the new deadline;
and the February 14, 2018 Letter set January 29, 2019 as the new
deadline.
23
913 F.3d 1099 (D.C. Cir. 2019) (Hoopa Valley) (rejecting a
coordinated withdrawal-and-resubmission scheme between the
applicant and the state certifying agency).
24
NID Request at Appendix A, California Board January 25,
2019 Letter Denying Without Prejudice NID’s Water Quality
Certification at 1-2.
37a
did not subsequently file a new request for water
quality certification with the California Board.
14. On February 19, 2019, NID filed its request with
the Commission, asking us to determine that the
California Board waived its certification authority for
the relicensing of the Yuba-Bear Project.
15. On March 5 and March 18, 2019, the Foothills
Water Network (Foothills) and the California Board,
respectively, filed responses to NID’s request, asking
that the Commission deny the request to find waiver.
II. Discussion
16. The “waiver” provision in section 401(a)(1) of the
CWA is at issue here. As noted above, under section
401 of the CWA, if a state certifying agency “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 [section 401] shall be waived with
respect to such federal application.”25
17. For the reasons discussed below, we find that the
California Board waived its authority under section
401.
A. Hoopa Valley and Commission Precedent
18. In Hoopa Valley, the D.C. Circuit found that “a
state waives its Section 401 authority when, pursuant
to an agreement between the state and applicant, an
applicant repeatedly withdraws-and-resubmits its
request for water quality certification over a period of
time greater than one year.”26 The court concluded
that where a licensee each year sent a letter indicating
25
33 U.S.C. § 1341(a)(1).
26
913 F.3d at 1103.
38a
withdrawal of its certification request and resubmission of the same,27 “[s]uch an arrangement does not
exploit a statutory loophole; it serves to circumvent
[FERC’s] congressionally granted authority over the
licensing, conditioning, and developing of a hydropower project.”28 In fact, “[b]y shelving water quality
certifications, the states usurp FERC’s control over
whether and when a federal license will issue. Thus,
if allowed, the withdrawal-and-resubmission scheme
could be used to indefinitely delay federal licensing
proceedings and undermine FERC’s jurisdiction to
regulate such matters.”29
19. Following Hoopa Valley, the Commission found
that the California Board waived its section 401
authority in Placer County Water Agency.30 In Placer
County, the Commission held that a formal agreement
between a licensee and a state was not necessary to
support a finding of waiver; rather, the exchanges
between the entities could amount to an ongoing
agreement.31 The Commission found that the record
27
In Hoopa Valley, the court noted that before each calendar
year passed, the applicant sent a “letter indicating withdrawal of
its water quality certification request and resubmission of the
very same ... in the same one-page letter ....” Id. at 1104 (emphasis
in original).
28
Id.
29
Id.
30
167 FERC ¶ 61,056, reh’g denied, 169 FERC ¶ 61,046 (2019)
(Placer County).
31
Placer County, 167 FERC ¶ 61,056 at P 16; see also
McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185, at PP 33-38
(2019); see also Pacific Gas and Electric Co., 170 FERC ¶ 61,232,
at P 27 (2020) (Pacific Gas and Electric); Southern California
Edison Co., 170 FERC ¶ 61,135, at P 23 (2020) (Southern
California Edison).
39a
showed that the entities worked to ensure that the
withdrawal and refile happened each year,32 given
that the licensee submitted evidence that the state
sent it emails about each upcoming one-year deadline
for the purpose of eliciting a withdrawal and resubmission.33 Based on this functional agreement and the fact
that Placer County never filed a new application, the
Commission concluded that the process caused lengthy
delay and found that the state waived its certification
authority.34
20. Similarly, in Southern California Edison Co.,35
the Commission found that the California Board
waived its section 401 authority with respect to the
relicensing of six projects that comprise the Big Creek
hydroelectric system. There, the Commission rejected
the Board’s argument that Hoopa Valley was not
applicable. While there was no explicit agreement
between the applicant and the Board, the Commission
found that the record showed the Board’s direct
participation in the withdrawal and resubmittal scheme,
including the Board’s comments on the draft EIS in
which the Board stated that “[i]f the one year federal
period for certification is insufficient for the [] Board
to act, staff will recommend that [Southern California
Edison] withdraw and resubmit their request for
[water quality certification] for the six Big Creek
projects.”36 The Commission found that this statement
coupled with the emails that the Board staff sent
annually ahead of the one-year deadline requesting
32
Placer County, 167 FERC ¶ 61,056 at P 12.
33
Placer County, 169 FERC ¶ 61,046 at P 17.
34
Id. PP 12, 18.
35
170 FERC ¶ 61,135.
36
Id. P 24; see also id. PP 23-29.
40a
the licensee to withdraw and resubmit its certification
application, demonstrated the state’s coordination
with the licensee and was sufficient to support a
waiver finding.37
21. Thereafter, in Pacific Gas and Electric Co.,38 the
Commission found that the California Board waived
its section 401 authority with respect to the surrender
of the Kilarc-Cow Creek Hydroelectric Project No. 606,
again stating that an explicit agreement between the
applicant and the Board was not necessary to find
waiver.39 We found that the record showed that the
Board expected the applicant to withdraw and refile
and the applicant cooperated.40 In its comments on the
draft EIS, the Board had indicated that the “usual
process” involves the applicant voluntarily withdrawing and refiling its application.41 Moreover, the
Commission found the Board’s assertion that it could
not issue a water quality certification until the CEQA
process was complete, which often takes more than
one year, unavailing and that the general principle
from Hoopa Valley still applied.42
B. Application
of
Hoopa
Valley
and
Commission Precedent to the Relicensing
Proceeding for the Yuba-Bear Project
22. The California Board and Foothills claim that
Hoopa Valley does not support a finding of waiver in
37
Id. P 25.
38
170 FERC ¶ 61,232.
39
Id. P 27.
40
Id.
41
Id.
42
Id. PP 31-33.
41a
this proceeding. They claim that there was no agreement for NID to withdraw and resubmit its application,
and that NID acted voluntarily and unilaterally in
doing so each year before the deadline.44
43
23. As we have held previously, an explicit written
agreement to withdraw and refile is not necessary.45
The facts in this proceeding are similar to those in
Pacific Gas and Electric Co., in that the Board
expected NID to withdraw and refile its application
and NID did so. In its comments on the draft EIS, the
Board even stated that it was “most likely” that NID
would withdraw and resubmit its application “before
the one year deadline if the [Board] [was] not ready to
issue its water quality certification[.]”46As in Hoopa
Valley, Placer County, Southern California Edison Co.,
and Pacific Gas and Electric Co., the California
Board’s efforts constituted a failure to act within the
43
California Board March 18, 2019 Response at 2; Foothills
March 5, 2019 Response at 2. Foothills also contends that the
Commission should not apply the findings in Hoopa Valley to any
pending licensing proceeding until judicial appeal of the decision
has been exhausted. Foothills March 5, 2019 Response at 1-2. On
December 9, 2019, the United States Supreme Court denied
certiorari, making the Hoopa Valley decision final. See California
Trout v. Hoopa Valley Tribe, 140 S. Ct. 650 (2019).
44
California Board March 18, 2019 Response at 2-4; Foothills
March 5, 2019 Response at 2-3.
45
See Pacific Gas and Electric Co., 170 FERC ¶ 61,232 at P 27;
Southern California Edison Co., 170 FERC ¶ 61,135 at P 23;
Placer County, 167 FERC ¶ 61,056 at PP 17-18; see also
Constitution Pipeline Co., LLC, 168 FERC ¶ 61,129 at PP 33-34
(Constitution).
46
at 1.
California Board’s August 22, 2013 Comments on draft EIS
42a
meaning of section 401 and gave it nearly six years
beyond the one-year deadline to act.47
24. The Board argues that “[c]onsistent with logic
and Commission precedent, ... an applicant’s decision
to withdraw its request for certification before
expiration of the certification period eliminates any
need to approve or deny the withdrawn request.”48
Similarly, Foothills argues that the Commission
should not find waiver where the Board relied on the
Commission’s long-standing practice of accepting
withdrawals and resubmittals as restarting the oneyear waiver deadline.49 We disagree. In Hoopa Valley,
the court faulted the Commission for concluding that,
although the many resubmissions from the hydroelectric license applicant “involved the same [p]roject,
each resubmission was an independent request,
subject to a new period of review.”50 Despite previous
Commission orders concluding that once an application is withdrawn, the refiling restarts the one-year
period, the court explained that a state’s obligation “to
act on a request for certification” within one year
applies to a specific request and “cannot be reasonably
interpreted to mean that the period of review for one
request affects that of any other request.”51
47
Hoopa Valley, 913 F.3d at 1105 (“The record indicates that
PacifiCorp’s water quality certification request has been complete
and ready for review for more than a decade.”); Placer County,
169 FERC ¶ 61,046 at P 18; Southern California Edison Co., 170
FERC ¶ 61,135 at P 25; Pacific Gas and Electric Co., 170 FERC
¶ 61,232 at P 27.
48
California Board March 18, 2019 Response at 3.
49
Foothills March 5, 2019 Response at 2.
50
913 F.3d at 1104.
51
Id.
43a
25. The Board alleges that NID presumably withdrew its requests voluntarily to avoid the Board
denying its application.52 In addition, both the Board
and Foothills argue that the certification process was
upheld by the CEQA process, for which NID was the
lead agency and controlled the timing.53 We rejected
similar arguments in prior proceedings. In Southern
California Edison Co., we found that the California
Board had waived its water quality certification
authority based on the fact that in the eight-plus
years of the applicant effectuating a withdrawal and
resubmittal of its application with a single page letter,
the applicant never filed a new application or any new
supporting information.54 In reaching this decision,
we also relied on record evidence that showed the
California Board’s direct participation in the withdrawal and resubmittal scheme, namely annual
reminder emails that the Board sent to the licensee
just before the one-year deadline requesting withdrawal and resubmission of the application.55 We
further concluded that
[e]ven absent this evidence, prior to and upon
receipt of each withdrawal, the California Board
had the option of denying certification within
the one year it was afforded under the CWA.
Therefore, by accepting each of [the licensee’s]
52
California Board March 18, 2019 Response at 2.
53
Id. at 3; Foothills March 5, 2019 Response at 2.
54
170 FERC ¶ 61,135, at P 28; see also Constitution, 168 FERC
¶ 61,129 at PP 32-37 (rejecting the state’s argument that the
applicant voluntarily resubmitted two certification requests in
response to the state’s indication that more time was necessary
to obtain and review additional information and that the state
would have likely denied the applications otherwise).
55
Southern California Edison Co., 170 FERC ¶ 61,135 at P 25.
44a
withdrawal/resubmission letters, the California
Board consented to the scheme of resetting the
one-year deadline.56
26. Similarly, in Pacific Gas and Electric Co., we
found that the California Board expected and encouraged the certification applicant to serially withdraw
and resubmit an identical application to avoid the
CWA’s one-year waiver deadline.57 With respect to the
applicant’s certification application for the surrender
of its license, the California Board acknowledged when
it commented on the draft EIS, and in every letter the
Board sent acknowledging receipt of the resubmitted
application, that the water quality certification could
not be issued without a final CEQA document.58 We
found that the California Board’s contention that the
applicant’s actions contributed to the delay ignored
the California Board’s own role in the process.59
27. Here, too, the California Board expected NID to
repeatedly withdraw and resubmit its application to
avoid the CWA’s one-year deadline. The Board
acknowledged in its comments on the draft EIS that
the water quality certification could not be issued until
the CEQA process was complete and, accordingly, that
NID would likely need to withdraw and resubmit its
application.60 Tellingly, as noted above, the Board did
56
Id.
170 FERC ¶ 61,232 at P 31.
58
Id.
59
Id.
60
See supra P 7. Indeed, state regulations codify this practice.
See Cal. Code Regs, tit. 23, § 3836(c) (“If an application is
determined to be complete by the certifying agency, but CEQA
requires that the certifying agency review a final environmental
document before taking a certification action, an extension of the
federal period for certification cannot be obtained, and the federal
57
45a
not dispute NID’s repeated statements that the project
had not changed between applications and that the
Board had all of the information it needed to act.
28. The Board and Foot hills’s arguments that,
because NID is the lead agency for CEQA and controls
the timing for CEQA compliance, NID should not
benefit from its own actions and the Board should not
be deprived of its CWA certification authority are
unpersuasive.61 We find that the Board’s contention
that NID alone is responsible for the delay in issuance
of a water quality certification ignores the Board’s own
role in the process. The California Board has admitted
that its administrative process often takes more than
the one year permitted by the CWA. The state’s
reliance on a regulatory process (i.e., CEQA) over
which it has potentially limited control over timing
and that often takes more than one year to complete
does not excuse compliance with the CWA. Moreover,
as we have explained, the “state’s reason for delay [is]
immaterial.”62 “The plain language of [s]ection 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.”’63
period for certification will expire before the certifying agency can
receive and properly review the necessary environmental documentation, the certifying agency shall deny without prejudice
certification for any discharge resulting from the proposed
activity unless the applicant in writing withdraws the request for
certification.”) (emphasis added).
61
See California Board March 18, 2019 Response at 2-3;
Foothills March 5, 2019 Response at 2-3.
62
Placer County, 169 FERC ¶ 61,046 at P 20; see also
Constitution, 168 FERC ¶ 61,129 at P 37.
63
See, e.g., New York DEC v. FERC, 884 F.3d 450, 455 (2d Cir.
2018).
46a
29. Lastly, the Board and Foothills argue that
finding waiver here would serve no purpose because
the Commission cannot issue a license until ESA
consultation is complete.64 Regardless of whether a
water quality certification decision is the sole factor
delaying a licensing proceeding, the general principle
from Hoopa Valley still applies: where an applicant
withdraws and resubmits a request for water quality
certification to avoid section 401’s one-year time limit,
and the state does not act within one year of the
receipt of an application, the state has failed or refused
to act under section 401; thus has waived its section
401 authority.65 Here, we find that the California
Board failed to act within the one-year period on NID’s
March 15, 2012 application, thereby waiving its
certification authority.
The Commission orders:
Nevada Irrigation District’s February 19, 2019
request for the Commission to find waiver is granted.
The Commission determines that the California State
Water Resources Control Board has waived its water
quality certification authority under section 401 of the
Clean Water Act with respect to the relicensing of
NID’s Yuba-Bear Hydroelectric Project No. 2266.
By the Commission.
(SEAL)
Kimberly D. Bose
Secretary
64
California Board March 18, 2019 Response at 2; Foothills
March 5, 2019 Response at 3.
65
Constitution, 168 FERC ¶ 61,129 at P 31.
47a
APPENDIX C
172 FERC P 61082 (F.E.R.C.), 2020 WL 4200746
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee, and
James P. Danly.
Nevada Irrigation District
Project No. 2266-118
ORDER ADDRESSING ARGUMENTS RAISED ON
REHEARING
(Issued July 21, 2020)
1. On April 16, 2020, the Commission granted a
request for waiver filed by Nevada Irrigation District
(NID) (Order on Waiver).1 The Commission determined that the California State Water Resources
Control Board (California Board) waived its authority
under section 401(a)(1) of the Clean Water Act2 (CWA)
to issue water quality certification for the relicensing
of the Yuba-Bear Hydroelectric Project No. 2266
(Yuba-Bear Project).
2. On May 15 and May 18, 2020, the California
Board and the Foothills Water Network, respectively,
filed timely requests for rehearing. Pursuant to
Allegheny Defense Project v. FERC,3 the rehearing
requests filed in this proceeding may be deemed
1
Nev. Irrigation District, 171 FERC ¶ 61,029 (2020) (Order on
Waiver).
2
3
33 U.S.C. § 1341(a)(1) (2018).
Allegheny Defense Project v. FERC, No. 17-1098, 2020 WL
3525547 (D.C. Cir. June 30, 2020).
48a
denied by operation of law. As permitted by section
313(a) of the Federal Power Act (FPA),4 however, we
are modifying the discussion in the Order on Waiver
and continue to reach the same result in this proceeding, as discussed below.5
3. On June 4, 2020, NID filed a motion for leave to
answer and answer to the requests for rehearing filed
by the California Board and Foothills Water Network.
Rule 713(d)(1) of the Commission’s Rules of Practice
and Procedure6 prohibits answers to a request for
rehearing. Accordingly, we deny NID’s motion and
reject its filing.
4. On rehearing, the California Board and the Foothills
Water Network argue that: (1) the Commission erred
in finding that the California Board and NID had an
agreement to defer CWA section 401’s one-year statutory time limitation in violation of Hoopa Valley Tribe
v. FERC (Hoopa Valley);7 (2) the California Board
never failed to act within one year from receiving
4
16 U.S.C. § 825l(a) (2018) (“Until the record in a proceeding
shall have been filed in a court of appeals, as provided in
subsection (b), the Commission may at any time, upon reasonable
notice and in such manner as it shall deem proper, modify or set
aside, in whole or in part, any finding or order made or issued by
it under the provisions of this chapter.”).
5
Allegheny Defense Project, slip op. at 30. The Commission is
not changing the outcome of the Order on Waiver. See Smith Lake
Improvement & Stakeholders Ass’n v. FERC, 809 F.3d 55, 56-57
(D.C. Cir. 2015).
6
7
18 C.F.R. § 385.713(d)(1) (2019).
California Board Rehearing Request at 4-7; Foothills Water
Network Rehearing Request at 15-23; Hoopa Valley Tribe v.
FERC, 913 F.3d 1099 (D.C. Cir. 2019) (rejecting a coordinated
withdrawal-and-resubmission scheme between the applicant and
the state certifying agency).
49a
NID’s water quality certification request;8 (3) the
Commission should not have acted on NID’s petition
for declaratory order until NID exhausted all remedies
with the California Board;9 (4) the Commission lacks
authority under the FPA and the CWA to invalidate
the state’s water quality certification procedures;10
(5) the Commission should not retroactively apply
Hoopa Valley to the facts of this case;11 and (6) NID’s
request is without merit because NID came to the
Commission with unclean hands.12
5. For the reasons discussed in the Order on
Waiver13 and as further explained in Commission
precedent,14 we continue to find that the Order on
Waiver’s determination that the California Board had
waived its authority under CWA section 401(a)(1) to
8
California Board Rehearing Request at 7-9; Foothills Water
Network Rehearing Request at 11-15.
9
California Board Rehearing Request at 9-10.
10
Foothills Water Network Rehearing Request at 27-29.
11
California Board Rehearing Request at 10-12; Foothills
Water Network Rehearing Request at 25-27.
12
California Board Rehearing Request at 12; Foothills Water
Network Rehearing Request at 23-25.
13
14
Order on Waiver, 171 FERC ¶ 61,029 at PP 23-29.
Pac. Gas & Elec. Co., 172 FERC ¶ 61,064 (2020); S. Feather
Water & Power Agency, 171 FERC ¶ 61,242 (2020); Merced
Irrigation Dist., 171 FERC ¶ 61,240 (2020); Yuba Cty. Water
Agency, 171 FERC ¶ 61,139 (2020); Pac. Gas & Elec. Co., 170
FERC ¶ 61,232, modified, 172 FERC ¶ 61,065 (2020); S. Cal.
Edison Co., 170 FERC ¶ 61,135, modified, 172 FERC ¶ 61,066
(2020); Placer Cty. Water Agency, 167 FERC ¶ 61,056, reh’g
denied, 169 FERC ¶ 61,046 (2019); McMahan Hydroelectric, LLC,
168 FERC ¶ 61,185 (2019), reh’g denied, 171 FERC ¶ 61,046
(2020); Constitution Pipeline Co., LLC, 168 FERC ¶ 61,129, reh’g
denied, 169 FERC ¶ 61,199 (2019).
50a
issue water quality certification for the relicensing of
the Yuba-Bear Project No. 2266.
6. Specifically, we find that the Order on Waiver
sufficiently addressed: (1) the existence of an agreement between the California Board and NID in
violation of Hoopa Valley;15 (2) the California Board’s
failure to act on NID’s water quality certification
within one year;16 and (3) whether NID came to the
commission with unclean hands.17 No further discussion is warranted.
7. We note that petitioners, for the first time on
rehearing, argue that NID must exhaust all administrative remedies with the California Board before
seeking a petition for declaratory order with the
Commission and that the Commission cannot invalidate the state’s water quality certification procedures
or retroactively apply Hoopa Valley to the facts of this
case. The Commission looks with disfavor on parties
raising issues for the first time on rehearing that could
have been raised earlier.18 Therefore, we dismiss
15
Order on Waiver, 171 FERC ¶ 61,029 at PP 23-25
(determining that an explicit written agreement is not necessary
to find a waiver of CWA section 401 water quality certification).
16
Id. PP 26-27 (the California Board cannot circumvent CWA’s
one-year deadline to act on applications for water quality
certification).
17
Id. P 28 (finding unpersuasive California Board’s argument
that NID benefitted from its own inaction).
18
See 18 C.F.R. § 385.713(c)(3) (new matters may be raised in
a rehearing request only when “based on matters not available
for consideration by the Commission at the time of the final
decision or final order”). See also Balt. Gas & Elec. Co., 91 FERC
¶ 61,270, at 61,922 (2000) (“We look with disfavor on parties
raising on rehearing issues that should have been raised earlier.
Such behavior is disruptive to the administrative process because
51a
petitioners’ arguments on this matter. Nonetheless,
we find that section 401 does not require that the
applicant pursue administrative remedies under
state law to effectuate the waiver of the certification
requirement.19 Additionally, the Commission took no
action to invalidate the California Board’s CWA
section 401 procedures; rather, it determined that
the application of the procedures in this proceeding
violated the express language of CWA section 401.20
Finally, notwithstanding the Commission’s past construction of CWA section 401, we must resolve cases
before us based on current law, and the Hoopa Valley
court did not limit its ruling to prospective cases.21 We
see no justification for not applying Hoopa Valley here.
it has the effect of moving the target for parties seeking a final
administrative decision.”).
19
See Millennium Pipeline Co., L.L.C. v. Seggos, 860 F.3d 696,
700 (D.C. Cir. 2017) (describing the waiver process for a FERCjurisdictional pipeline as follows: “Instead, the delay triggers the
Act’s waiver provision, and [the pipeline company] then can
present evidence of waiver directly to FERC to obtain the
agency’s go-ahead to begin construction.”). See also Pac. Gas &
Elec. Co., 172 FERC ¶ 61,065 at P 31; S. Cal. Edison Co., 172
FERC ¶ 61,066 at P 33.
20
21
Order on Waiver, 171 FERC ¶ 61,029 at P 28.
Pac. Gas & Elec. Co., 172 FERC ¶ 61,064 at P 39
(“notwithstanding the Commission’s past construction of section
401, we must resolve cases before us based on current law, and
the Hoopa Valley court did not limit the ruling to prospective
cases”); Pac. Gas & Elec. Co., 172 FERC ¶ 61,065 at P 33 (same);
S. Cal. Edison Co., 172 FERC ¶ 61,066 at P 35 (same); see Placer
Cty. Water Agency, 167 FERC ¶ 61,056 at P 15 (“The Hoopa Valley
court did not in any way indicate that its ruling was limited solely
to the case before it, and to conclude that the court’s decision does
not apply to similarly-situated cases would fail to give full effect
to that ruling. We are aware of no sound legal or equitable basis
for doing so.”); see also Constitution Pipeline Co., LLC, 169 FERC
52a
The Commission orders:
In response to California State Water Resource
Control Board’s and the Foothills Water Network’s
requests for rehearing, the Order on Waiver is hereby
modified and the result is sustained, as discussed in
the body of this order.
By the Commission.
(SEAL)
Nathaniel J. Davis, Sr.
Deputy Secretary
¶ 61,199 at PP 29-34 (providing an in-depth discussion of the
Commission’s application of Hoopa Valley).
53a
APPENDIX D
171 FERC P 61139 (F.E.R.C.), 2020 WL 3026599
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee, and
James P. Danly.
Yuba County Water Agency
Project No. 2246-065
ORDER ON WAIVER OF WATER QUALITY
CERTIFICATION
(Issued May 21, 2020)
1. On August 22, 2019, as supplemented on
September 4, 2019, Yuba County Water Agency d/b/a
Yuba Water Agency (Yuba County), licensee for the
Yuba River Development Project No. 2246 (Yuba River
Project), filed a request for the Commission to
determine that the California State Water Resources
Control Board (California Board or Board) waived its
authority under section 401(a)(1) of the Clean Water
Act (CWA)1 to issue water quality certification for
relicensing the Yuba River Project. This order makes
such a determination.
I. Background
2. On May 16, 1963, the Commission issued Yuba
County a 50-year license to construct, operate, and
maintain what is now the Yuba River Project.2 The
1
2
33 U.S.C. § 1341(a)(1) (2018).
Yuba County Water Agency, 29 FPC ¶ 1002 (1963). The
Commission issued an order amending the license in 1966 and
54a
license expired on April 30, 2016. Yuba County
continues to operate the project under an annual
license.
3. On April 28, 2014, Yuba County filed an application for a new license for the project and on June 5,
2017, it amended its application. On June 26, 2017,
the Commission issued a notice accepting the application and indicating that it was ready for environmental
analysis.
4. Section 401(a)(1) of the CWA requires that an
applicant for a federal license or permit to conduct
activities that may result in a discharge into the
navigable waters of the United States-like Yuba County’s
operation of the Yuba River Project - must provide the
licensing or permitting agency a water quality certification from the state in which the discharge originates
or evidence of waiver thereof.3 If the state “fails or
refuses to act on a request for certification, within a
reasonable period of time (which shall not exceed one
year) after receipt of such request,” then certification
is waived.4
5. Yuba County requested water quality certification for the project on August 24, 2017, and the
California Board received the application the same
changed the effective date of the license from May 1, 1963 to May
1, 1966. Yuba County Water Agency, 35 FPC ¶ 691 (1966).
3
33 U.S.C. § 1341(a)(1). Section 401(d) of the CWA provides
that a certification and the conditions contained therein shall
become a condition of any federal license that is issued. Id. §
1341(d). See City of Tacoma, Washington v. FERC, 460 F.3d 53
(D.C. Cir. 2006).
4
33 U.S.C. § 1341(a)(1).
55a
day. In its September 21, 2017 letter to Yuba County
acknowledging receipt, the Board confirmed that
“[Yuba County’s] letter initiates a one-year deadline
from the date it was received for the [Board] to act on
the request for certification” and the “deadline for
certification action is August 24, 2018.”6 The Board did
not suggest that the application was incomplete.
5
6. Staff from the Board emailed Yuba County on
July 25, 2018, stating that the action date for the Yuba
River Project was August 24, 2018; inquiring about
the filing of a California Environmental Quality Act
(CEQA) document for the project, noting that without
the CEQA document the California Board could not
complete its environmental analysis; and directing
Yuba County to “submit a withdraw/resubmit of the
certification application as soon as possible.”7 On the
same day, Yuba County replied “we plan to submit the
withdrawal/resubmittal letter on August 20. Will that
work for you?”8 Later on July 25, 2018, the Board told
Yuba County that “management usually gets a little
5
As required by section 5.23(b)(1)(ii) of the Commission’s Rules
and Regulations, 18 C.F.R. § 5.23(b)(1)(ii) (2019), Yuba County
filed a copy of the request with the Commission, including proof
of the date of receipt of the request. Yuba County August 25, 2017
filing, attaching a date-stamped Copy of Request for
Certification.
6
California Board September 21, 2017 Letter Confirming
Receipt of Water Quality Certification Application at 1 (filed with
the Commission on October 2, 2017).
7
July 25, 2018 Email from Mr. Philip Choy, California Board
to Mr. Geoff Rabone, Yuba County, and Mr. Jim Lynch, Consultant to Yuba County. Yuba County August 22, 2019 Petition for
Waiver Determination (Petition for Waiver) Appendix B at 7.
8
July 25, 2018 Email from Mr. Lynch, Consultant to Yuba
County to Mr. Choy, California Board. Yuba County Petition for
Waiver Appendix B at 7.
56a
antsy when our action date gets below 3 weeks because
a ‘deny without prejudice’ letter takes time to route to
our Executive Director. If possible, please submit the
letter by next Friday.”
7. On August 3, 2018, Yuba County withdrew and
resubmitted its application for water quality certification.9 Yuba County’s application stated that the
“[p]roject has not changed, so the June 2, 2017 Amended
[Final License Application], which the State Water
Board has on file, contains all information required for
a complete application for water quality certification.”
The Board acknowledged receipt of the application on
August 22, 2018, stating that the August 3, 2018 letter
“serves as a formal withdrawal and re-filing request
for certification” and the “new deadline for certification is August 3, 2019.”10 The Board did not dispute
Yuba’s statements that the project had not changed
and that the application was complete.
8. On January 25, 2019, the United States Court of
Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an opinion in Hoopa Valley Tribe v.
FERC,11 ruling that, where a state and an applicant
agree to repeatedly withdraw and refile the same
9
As required by section 5.23(b)(1) of the Commission’s Rules
and Regulations, Yuba County filed a copy of the request with the
Commission. Yuba County August 3, 2018 Copy of Request for
Certification.
10
California Board August 22, 2018 Letter Confirming Receipt
of Water Quality Certification Application at 1 (filed with the
Commission on August 27, 2018).
11
913 F.3d 1099 (D.C. Cir. 2019) (Hoopa Valley) (rejecting a
coordinated withdrawal-and-resubmission scheme between the
applicant and the state certifying agency).
57a
water quality certification request, the state has
waived certification.
9. On July 31, 2019, the California Board issued
an order purporting to deny without prejudice Yuba
County’s request for water quality certification, stating that the CEQA process and consultation under the
Endangered Species Act (ESA) had not been completed, and that “[the California Board] encourages
[Yuba County] to submit a new formal request for
certification.”12 Yuba County did not subsequently file
a new request.
10. On August 22, 2019, Yuba County filed the
present request with the Commission, asking us to
determine that the California Board waived its
certification authority for the relicensing of the Yuba
River Project.
11. On March 3, 2020, the Commission issued public
notice of the petition, establishing April 2, 2020, as the
deadline for filing comments.13 The California Board,
California Department of Fish and Wildlife (California
Fish and Wildlife), and Foothills Water Network and
12
California Board July 31, 2019 Denial without Prejudice of
Water Quality Certification Application (filed with the Commission
on August 1, 2019).
13
Because Yuba County filed its request in the relicensing
docket, as to which the Commission previously provided the
opportunity to intervene, the notice did not provide for
intervention.
58a
its member organization (Foothills),14 each filed comments opposing Yuba County’s request.15
12. Yuba County filed an answer to the responses.16
Rule 213(a) of the Commission’s Rules of Practice and
Procedure prohibits answers to answers unless otherwise ordered by the Commission.17 Here, we do not find
this answer to provide additional information that
would be helpful in our decision making. Therefore,
this pleading is rejected as an impermissible answer.
II. Discussion
13. The “waiver” provision of section 401(a)(1) of the
CWA is at issue here. As noted above, under section
401 of the CWA, if a state certifying agency “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 [section 401] shall be waived with
14
Foothills’ member organizations are American Rivers,
American Whitewater, California Outdoors, California Sport
fishing Protection Alliance, Friends of the River, Gold Country
Fly Fishers, Northern California Council of Fly Fishers
International (formerly Northern California Council Federation
of Fly Fishers), Sierra Club, South Yuba River Citizens League,
and Trout Unlimited.
15
See California Board April 2, 2020 Comments; California
Fish and Wildlife March 26, 2020 Comments; Foothills April 2,
2020 and October 7, 2019 Comments. Under Rule 213 of the
Commission’s Rules of Practice and Procedure, 18 C.F.R. §
385.213(d)(2)(ii), comments on the August 22, 2019 request were
due by September 21, 2019. The Commission’s March 3, 2020
public notice of the petition established a second comment
deadline. Id. § 385.213(d)(2)(i).
16
See Yuba County April 17, 2020 Comments.
17
18 C.F.R. § 385.213(a)(2).
59a
respect to such federal application.”18 For the reasons
discussed below, we find that the California Board
waived its authority under section 401.
A. Hoopa Valley and Commission Precedent
14. In Hoopa Valley, the D.C. Circuit found that “a
state waives its Section 401 authority when, pursuant
to an agreement between the state and applicant,
an applicant repeatedly withdraws-and-resubmits its
request for water quality certification over a period of
time greater than one year.”19 The court concluded
that where a licensee each year sent a letter indicating
withdrawal of its certification request and resubmission of the same request,20 “[s]uch an arrangement
does not exploit a statutory loophole; it serves to circumvent [FERC’s] congressionally granted authority
over the licensing, conditioning, and developing of a
hydropower project.”21 In fact, “[b]y shelving water
quality certifications, the states usurp FERC’s control
over whether and when a federal license will issue.
Thus, if allowed, the withdrawal-and-resubmission
scheme could be used to indefinitely delay federal
licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.”22
15. Following Hoopa Valley, the Commission found
that the California Board waived its section 401
18
33 U.S.C. § 1341(a)(1).
19
913 F.3d at 1103.
20
In Hoopa Valley, the court noted that “before each [full-]year
passed, [the applicant] sent a letter indicating withdrawal of its
water quality certification request and resubmission of the very
same ... in the same one-page letter ....” Id. at 1104 (emphasis in
original).
21
Id.
22
Id.
60a
authority in Placer County Water Agency.23 In Placer
County, the Commission held that a formal agreement
between a licensee and a state was not necessary to
support a finding of waiver; rather, the exchanges
between the entities could amount to an ongoing
agreement.24 The Commission found that the record
showed that the entities worked to ensure that the
withdrawal and refiling happened each year,25 given
that the licensee submitted evidence that the state
sent it emails about each upcoming one-year deadline
for the purpose of eliciting a withdrawal and resubmission.26 Based on this functional agreement and the fact
that Placer County never filed a new application, the
Commission concluded that the process caused lengthy
delay and found that the state waived its certification
authority.27
16. Similarly, in Southern California Edison, the
Commission found that the California Board waived
its section 401 authority for relicensing six projects
that comprise the Big Creek hydroelectric system.28
There, the Commission rejected the Board’s argument
that Hoopa Valley was not applicable. While there was
no explicit agreement between the applicant and the
23
167 FERC ¶ 61,056 (2019) (Placer County), reh’g denied, 169
FERC ¶ 61,046 (2019).
24
Placer County, 167 FERC ¶ 61,056 at P 16; see also
McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185, at PP 33-38
(2019); Pacific Gas and Electric Co., 170 FERC ¶ 61,232, at P 27
(2020) (Pacific Gas and Electric); Southern California Edison Co.,
170 FERC ¶ 61,135, at P 23 (2020) (Southern California Edison).
25
Placer County, 167 FERC ¶ 61,056 at P 12.
26
Placer County, 169 FERC ¶ 61,046 at P 17.
27
Id. PP 12, 18.
28
170 FERC ¶ 61,135 (2020).
61a
Board, the Commission found that the record showed
the Board directly participated in the withdrawal and
resubmittal scheme. The Board staff sent annual
emails to the licensee noting the upcoming one-year
deadline and explicitly requested withdrawal and
resubmittal,29 commenting that “[i]f the one year
federal period for certification is insufficient for the []
Board to act, staff will recommend that [Southern
California Edison] withdraw and resubmit their request
for [water quality certification] for the six Big Creek
projects.”30 The Commission found this evidence demonstrated the state’s coordination with the licensee and
was sufficient to support a waiver finding.31
17. Thereafter, in Pacific Gas and Electric, the
Commission found that the California Board waived
its section 401 authority with respect to the surrender
of the Kilarc-Cow Creek Hydroelectric Project No. 606,
again stating that an explicit agreement between the
applicant and the Board was not necessary to find
waiver.32 We found that the record showed that the
Board expected the applicant to withdraw and refile
its certification application and the applicant cooperated.33 In its comments, the Board indicated that the
“usual process” involved the applicant voluntarily
withdrawing and refiling its application.34 Moreover,
the Commission found unavailing the Board’s assertion that it could not issue a water quality certification
until the CEQA process was complete, which often
29
Id P 25.
30
Id. P 24; see also id. PP 23-29.
31
Id. P 25.
32
170 FERC ¶ 61,232 at P 27.
33
Id.
34
Id.
62a
takes more than one year, and determined that the
general principle from Hoopa Valley still applied.35
The Commission found, as it had previously, that a
“state’s reason for delay [is] immaterial.”36
18. Most recently, in Nevada Irrigation District, we
again found that the Board waived its authority to
issue a water quality certification where the applicant
withdrew and refiled its application numerous times,
even when an explicit agreement was not in place.37
The Commission found unpersuasive the argument
that the Nevada Irrigation District, as the lead agency
for CEQA, controlled the timing for the CEQA analysis, and reiterated that the “state’s reason for delay is
immaterial.”38 Further, we dispensed with the argument by the Board and Foothills that the timing of the
water quality certification, even if it extends beyond
one year, would not disrupt the relicensing proceeding
because ESA consultation was not complete, reaffirming that section 401 of the CWA is clear, and that
failure to act within the one-year time limit is
absolute.39
B. Application of Hoopa Valley and Commission Precedent to the Relicensing Proceeding
for the Yuba River Project
19. The California Board, California Fish and
Wildlife, and Foothills claim that Hoopa Valley does
35
Id. PP 31-33.
36
Id. P 35 (citing Placer County, 169 FERC ¶61,046 at P 20).
37
171 FERC ¶ 61,029 (2020).
38
Id. P 28.
39
Id. P 29.
63a
not support a finding of waiver in this proceeding.40
They claim that there was no agreement for Yuba
County to withdraw and resubmit its application, that
Yuba County acted voluntarily and unilaterally in
doing so each year before the deadline, that Yuba
County’s failure to prepare and submit a CEQA
document caused delay and precluded the Board’s
issuance of a certification, that the Board’s issuance of
a certification even if taking longer than one year
would not delay the Commission’s licensing proceeding, and that Yuba County failed to exhaust all state
administrative remedies.41
1. Agreement
Waiver
Not
Necessary
to
Find
20. As we have held previously, an explicit written
agreement to withdraw and refile is not necessary
to support a finding of waiver.42 The facts in this
proceeding are similar to those in Pacific Gas and
Electric and Nevada Irrigation District, in that Yuba
County’s withdrawal and refiling of its application was
in response to the Board’s request that it do so. Here,
the Board informed Yuba County, on July 25, 2018,
one month in advance of the one-year deadline that:
40
California Board April 2, 2020 Response at 1; California Fish
and Wildlife March 26, 2020 Response at 2; Foothills October 7,
2019 Response at 4; Foothills April 2, 2020 Response at 5.
41
California Board April 2, 2020 Response at 4; California Fish
and Wildlife March 26, 2020 at 3; Foothills October 7, 2019
Response at 4-7; Foothills April 2, 2020 Response at 5-8.
42
See Pacific Gas and Electric, 170 FERC ¶ 61,232 at P 27;
Southern California Edison, 170 FERC ¶ 61,135 at P 23; Placer
County, 167 FERC ¶ 61,056 at PP 17-18; Nevada Irrigation
District, 171 FERC ¶ 61,029 at P 23; see also Constitution Pipeline
Company, LLC, 168 FERC ¶ 61,129, at PP 33-34 (2019).
64a
[Yuba County’s] water quality certification action
date for the Yuba River Development Project
(FERC No. 2246) is August 24, 2018. A final
CEQA document for the Project has not been filed;
therefore, the State Water Board cannot complete
the environmental analysis of the Project that is
required for certification. Please submit a withdraw/
resubmit of the certification application as soon as
possible.43
The coordination between the Board and Yuba
County alone is sufficient evidence that the California
Board sought the withdrawal and resubmittal of the
Yuba River application to circumvent the one-year
statutory deadline for the state agency to act. As in
Hoopa Valley, Placer County, Southern California
Edison, Pacific Gas and Electric, and Nevada Irrigation
District, the California Board’s efforts constituted a
failure to act within the meaning of section 401, in
order to provide the Board additional time beyond the
one-year deadline to act.44
43
July 25, 2018 Email from Mr. Philip Choy, California Board,
to Mr. Geoff Rabone, Yuba County, and Mr. Jim Lynch,
Consultant to Yuba County. Yuba County Petition for Waiver
Appendix B at 7.
44
Hoopa Valley, 913 F.3d at 1105 (“The record indicates that
PacifiCorp’s water quality certification request has been complete
and ready for review for more than a decade.”); Placer County,
169 FERC ¶ 61,046 at P 18; Southern California Edison, 170
FERC ¶ 61,135 at P 25; Pacific Gas and Electric, 170 FERC
¶ 61,232 at P 27; Nevada Irrigation District, 171 FERC ¶ 61,029
at P 23.
65a
2. California Board Was Complicit
21. The Board alleges that Yuba County presumably
withdrew its requests voluntarily.45 We rejected
similar arguments in prior proceedings. In Southern
California Edison, we found that the California Board
had waived its water quality certification authority
based on the fact that, in the eight-plus years of the
applicant effectuating a withdrawal and resubmittal
of its application with a single page letter, the applicant
never filed a new application or any new supporting
information.46 In reaching this decision, we also relied
on record evidence that showed the California Board’s
direct participation in the withdrawal and resubmittal
scheme, namely annual reminder emails that the
California Board sent to the licensee just before the
one-year deadline, requesting withdrawal and resubmission of the application.47 We further concluded
that:
[e]ven absent this evidence, prior to and upon
receipt of each withdrawal, the California Board
had the option of denying certification within
the one year it was afforded under the CWA.
Therefore, by accepting each of [the licensee’s]
withdrawal/resubmission letters, the California
45
California Board April 2, 2020 Response at 3; see also
California Fish and Wildlife March 26, 2020 Response at 4-5
(“Presumably, [Yuba County] requested withdrawal of its request
for water quality verification because it viewed a voluntary
withdrawal as preferable to [the Board’s] denial of its request.”).
46
170 FERC ¶ 61,135 at P 28; see also Constitution, 168 FERC
¶ 61,129 at PP 32-37 (rejecting the state’s argument that the
applicant voluntarily resubmitted two certification requests in
response to the state’s indication that more time was necessary
to obtain and review additional information).
47
Id. P 25.
66a
Board consented to the scheme of resetting the
one-year deadline.48
22. Similarly, in Pacific Gas and Electric, we found
that the California Board expected and encouraged
the certification applicant to withdraw and resubmit
an identical application to avoid the CWA’s one-year
waiver deadline.49 Here, too, the California Board
directly asked Yuba County to withdraw and resubmit
its application to avoid the CWA’s one-year deadline.
3. CEQA Requirements Cannot Circumvent the CWA’s One-Year Deadline for
Action
23. The Board, California Fish and Wildlife, and
Foothills argue that Yuba County did not prepare a
CEQA document and by failing to do so prevented the
Board from acting on the certification application.50
The Commission addressed this argument in Pacific
Gas and Electric, where the California Board, in every
letter the Board sent acknowledging receipt of the
resubmitted application, stated that the water quality
certification could not be issued without a final CEQA
document.51 We found that the California Board’s
contention that the applicant’s actions contributed to
the delay ignored the California Board’s own role in
the process.52
48
Id.
49
170 FERC ¶ 61,232 at P 31.
50
California Board April 2, 2020 Response at 3; California Fish
and Wildlife March 26, 2020 at 2-4; Foothills October 7, 2019
Response at 5-6; Foothills April 2, 2020 Response at 6-7.
51
52
170 FERC ¶ 61,232 at PP 32-33
Id. P 31; see also Nevada Irrigation District, 171 FERC
¶ 61,029 at P 26.
67a
24. The Board acknowledged that the water quality
certification could not be issued until the CEQA
process was complete and, accordingly, that Yuba
County would likely need to withdraw and resubmit
its application.53 Tellingly, as noted above, the Board
did not dispute Yuba County’s statements that the
project had not changed between applications and that
the Board had all of the information it needed to act.
25. The Board, California Fish and Wildlife, and
Foothills argue that, because Yuba County is the lead
agency for CEQA and controls the timing for CEQA
compliance, Yuba County should not benefit from its
own actions and the Board should not be deprived of
its CWA certification authority.54 This argument is
unpersuasive. We find that the Board’s contention
that Yuba County alone is responsible for the delay in
issuance of a water quality certification ignores the
Board’s own role in the process. The reliance on a state
regulatory process (i.e., CEQA compliance) over which
the Board has potentially limited control over timing
and often takes more than one year to complete
does not excuse the Board from complying with the
statutory requirements of the CWA. Moreover, as we
have explained, the “state’s reason for delay [is]
immaterial.”55 And courts are in agreement that “the
plain language of [s]ection 401 outlines a bright-line
rule regarding the beginning of review: the timeline
for a state’s action regarding a request for certification
53
See supra P 6.
54
California Board April 2, 2020 Response at 3; California Fish
and Wildlife March 26, 2020 Response at 4; Foothills October 7,
2019 Response at 5-6; Foothills April 2, 2020 Response at 6-7.
55
Placer County, 169 FERC ¶ 61,046 at P 20; Nevada Irrigation
District, 171 FERC ¶ 61,029 at P 28; see also Constitution, 168
FERC ¶ 61,129 at P 37.
68a
‘shall not exceed one year’ after ‘receipt of such
request.”’56 Accordingly, a state may not extend the
one-year deadline to act even if a state process may, in
practice, often take more than one year to complete.57
We note that to the extent a state lacks sufficient
information to act on a certification request, it has a
remedy: it can deny certification.58 Delay beyond the
statutory deadline, however, is not an option.59
56
New York DEC v. FERC, 884 F.3d 450, 455 (2d Cir. 2018)
(citing Alabama Rivers All. v. FERC, 325 F.3d 290, 296-97 (D.C.
Cir. 2003)); see also Hoopa Valley, 913 F.3d at 1101 (citing Alcoa
Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir.
2011)).
57
See, e.g., Nevada Irrigation District, 171 FERC ¶ 61,029 at P
27 (referencing the California Board’s comment that the water
quality certification could not be issued until the Board’s CEQA
process was complete and the applicant would likely need to
withdraw and resubmit its certification application).
58
Indeed, the state has codified a practice along these lines.
See Cal. Code Regs, tit. 23, § 3836(c) (“If an application is
determined to be complete by the certifying agency, but CEQA
requires that the certifying agency review a final environmental
document before taking a certification action, an extension of the
federal period for certification cannot be obtained, and the federal
period for certification will expire before the certifying agency can
receive and properly review the necessary environmental documentation, the certifying agency shall deny without prejudice
certification for any discharge resulting from the proposed
activity unless the applicant in writing withdraws the request for
certification.”) (emphasis added).
59
See Hoopa Valley, 913 F.3d at 1104-05 (“Congress intended
Section 401 to curb a state’s ‘dalliance or unreasonable delay’ ....
This Court has repeatedly recognized that the waiver provision
was created ‘to prevent a State from indefinitely delaying a
federal licensing proceeding.”‘) (emphasis in original) (citation
omitted).
69a
26. In addition, California Fish and Wildlife and
Foothills argue that if Yuba County submits a new
application to the Board including a CEQA document
it would constitute a new and different application and
restart the certification clock.60 We need not reach this
conclusion as this issue has not been presented to us
here.61
4. ESA Consultation During Relicensing
Does Not Alter the One-Year Deadline of
the CWA
27. The Board argues that finding waiver here
would serve no purpose, because the Commission
cannot issue a license until ESA consultation is
complete.62 Regardless of whether a water quality
certification decision is the sole factor delaying a
licensing proceeding, the general principle from Hoopa
Valley still applies: where an applicant withdraws and
resubmits a request for water quality certification to
avoid section 401’s one-year time limit, and the state
does not act within one year of the receipt of an
application, the state has failed or refused to act under
section 401 and thus has waived its section 401
60
California Fish and Wildlife March 26, 2020 Response at 58; Foothills October 7, 2019 Response at 8-9; Foothills April 2,
2020 Response at 13-14.
61
See New York DEC v. FERC, 884 F.3d at 455-56 (“[The CWA]
does not specify that this time limit applies only for ‘complete’
applications. If the statute required ‘complete’ applications,
states could blur this bright-line rule into a subjective standard,
dictating that applications are ‘complete’ only when state
agencies decide that they have all the information they need. The
state agencies could thus theoretically request supplemental
information indefinitely.”).
62
California Board April 2, 2020 Response at 2.
70a
authority. Here, we find that the California Board
failed to act within the one-year period on Yuba
County’s August 24, 2017 application, thereby waiving
its certification authority.64
63
5. Pursuing State Remedies Not Required
28. The Board argues that Yuba County failed to
exhaust its administrative remedies by neither
requesting reconsideration nor otherwise challenging
the denial without prejudice or any alleged failure to
act by the Board and has thus waived any rights to
now allege waiver on these bases.65 The Board’s
argument is misplaced. As we have explained, the
issue of whether the California Board waived its
certification authority is a federal question correctly
before the Commission in the first instance, and one
that must be resolved by reference to federal law, not
state procedure.66
63
See Pacific Gas and Electric, 170 FERC ¶ 61,232 at P 39.
64
In fact, while the Commission generally does not issue a
license prior to the completion of ESA consultation, we are not
prohibited from issuing a license that is contingent on the
completion of consultation. See, e.g., Myersville Citizens for a
Rural Cmty. v. FERC, 783 F.3d 1301, 1320-21 (D.C. Cir. 2015)
(upholding the Commission’s conditional approval of a natural
gas facility construction project where the Commission
conditioned its approval on the applicant securing a required
federal Clean Air Act air quality permit from the state).
65
66
California Board April 2, 2020 Response at n.2.
See Pacific Gas and Electric, 170 FERC ¶ 61,232 at P 43; see
also Millennium Pipeline Co., 860 F.3d at 700-01; Keating v.
FERC, 927 F.2d 616, 622 (D.C. Cir. 1991) (“[T]he question before
us focuses on FERC’s authority to decide whether the state’s
purported revocation of its prior [section 401 water quality]
certification satisfied the terms of section 401(a)(3) [of the CWA].
71a
The Commission orders:
(A) Yuba County Water Agency’s August 22, 2019
request for the Commission to find waiver is granted.
The Commission determines that the California State
Water Resources Control Board has waived its water
quality certification authority under section 401 of the
Clean Water Act for relicensing Yuba County’s Yuba
River Development Project No. 2246.
(B) This order constitutes final agency action. Any
party may file a request for rehearing of this order
within 30 days from the date of its issuance, as
provided in section 313(a) of the FPA, 16 U.S.C. § 825l
(2018), and section 385.713 of the Commission’s
regulations, 18 C.F.R. § 385.713 (2019).
By the Commission.
(SEAL)
Kimberly D. Bose
Secretary
We have no doubt that the question posed is a matter of federal
law, and that it is one for FERC to decide in the first instance.”).
72a
APPENDIX E
172 FERC P 61080 (F.E.R.C.), 2020 WL 4200745
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee, and
James P. Danly.
Yuba County Water Agency
Project No. 2246-086
ORDER DENYING REHEARING
(Issued July 21, 2020)
1. On May 21, 2020, the Commission granted a
petition for declaratory order filed by Yuba County
Water Agency d/b/a Yuba Water Agency (Yuba County)
(Order on Waiver).1 The Commission determined that
the California State Water Resources Control Board
(California Board) waived its authority under section
401(a)(1) of the Clean Water Act2 (CWA) to issue water
quality certification for the relicensing of the Yuba
River Development Project No. 2246 (Yuba River
Project). On June 22, 2020, the California Board and
Foothills Water Network filed timely requests for
rehearing of the Order on Waiver.
2. On July 7, 2020, Yuba County filed a motion for
leave to answer and answer to the requests for
rehearing filed by the California Board and Foothills
Water Network. Rule 713(d)(1) of the Commission’s
1
Yuba Cty. Water Agency, 171 FERC ¶ 61,139 (2020) (Order on
Waiver).
2
33 U.S.C. § 1341(a)(1) (2018).
73a
Rules of Practice and Procedure3 prohibits answers to
a request for rehearing. Accordingly, we deny Yuba
County’s motion and reject its filing.
3. On rehearing, the California Board and the
Foothills Water Network argue that: (1) the Commission erred in finding that the California Board and
Yuba County had an agreement to defer CWA section
401’s one-year statutory time limitation in violation of
Hoopa Valley Tribe v. FERC (Hoopa Valley);4 (2) the
California Board never failed to act within one year
from receiving Yuba County’s water quality certification request;5 (3) the Commission should not have
acted on Yuba County’s request for declaratory order
until Yuba County exhausted all remedies with the
California Board;6 (4) the Commission lacks authority
under the FPA and the CWA to invalidate the state’s
water quality certification procedures;7 (5) the Commission should not retroactively apply Hoopa Valley to
the facts of this case;8 and (6) Yuba County’s request
3
18 C.F.R. § 385.713(d)(1) (2019).
4
California Board Rehearing Request at 6-13; Foothills Water
Network Rehearing Request at 15-23; Hoopa Valley Tribe v.
FERC, 913 F.3d 1099 (D.C. Cir. 2019) (rejecting a coordinated
withdrawal-and-resubmission scheme between the applicant and
the state certifying agency).
5
California Board Rehearing Request at 11-12; Foothills
Water Network Rehearing Request at 11-14, 23-25.
6
California Board Rehearing Request at 13-14.
7
Foothills Water Network Rehearing Request at 29-34.
8
California Board Rehearing Request at 14-16; Foothills
Water Network Rehearing Request at 27-29.
74a
is without merit because Yuba County came to the
Commission with unclean hands.9
4. For the reasons discussed in the Order on Waiver
and as further explained in Commission precedent,10
we reaffirm the Order on Waiver’s determination that
the California Board waived its authority under CWA
section 401(a)(1) to issue water quality certification for
the relicensing of the Yuba River Project No. 2246.
5. Specifically, we find that the Order on Waiver
sufficiently addressed: (1) the existence of an agreement between the California Board and Yuba County
in violation of Hoopa Valley;11 (2) the California
Board’s failure to act on Yuba County’s water quality
certification within one year;12 (3) whether Yuba
County must exhaust all administrative remedies
with the California Board before seeking a petition for
9
California Board Rehearing Request at 16-17; Foothills
Water Network Rehearing Request at 25-27.
10
Pac. Gas & Elec. Co., 172 FERC ¶ 61,064 (2020); S. Feather
Water & Power Agency, 171 FERC ¶ 61,242 (2020); Merced
Irrigation District, 171 FERC ¶ 61,240 (2020); Nevada Irrigation
Dist., 171 FERC ¶ 61,029 (2020); Pac. Gas & Elec. Co., 170 FERC
¶ 61,232, modified, 172 FERC ¶ 61,065 (2020); S. Cal. Edison Co.,
170 FERC ¶ 61,135, modified, 172 FERC ¶ 61,066 (2020); Placer
Cty. Water Agency, 167 FERC ¶ 61,056, reh’g denied, 169 FERC
¶ 61,046 (2019); McMahan Hydroelectric, LLC, 168 FERC
¶ 61,185 (2019), reh’g denied, 171 FERC ¶ 61,046 (2020);
Constitution Pipeline Co., LLC, 168 FERC ¶ 61,129, reh’g denied,
169 FERC ¶ 61,199 (2019).
11
Order on Waiver, 171 FERC ¶ 61,139 at PP 20-22
(determining that an explicit written agreement is not necessary
to find a waiver of CWA section 401 water quality certification).
12
Id. PP 23-26 (the California Board cannot circumvent CWA’s
one-year deadline to act on applications for water quality
certification).
75a
declaratory order with the Commission;13 and (4)
whether Yuba County came to the Commission with
unclean hands.14 No further discussion is warranted.
6. We note that petitioners, for the first time on
rehearing, argue that the Commission cannot invalidate the state’s water quality certification procedures
or retroactively apply Hoopa Valley to the facts of this
case. The Commission looks with disfavor on parties
raising issues for the first time on rehearing that could
have been raised earlier,15 particularly in California
Board’s or Foothills Water Network’s prior comments
on Yuba County’s petition for declaratory order.16
Therefore, we dismiss petitioners’ arguments on this
matter. Nonetheless, we find that that the Commission took no action to invalidate California Board’s
CWA section 401 procedures; rather, it determined
that the application of those procedures in this
proceeding violated the express language of CWA
13
Id. P 28 (finding that Yuba County does not have to exhaust
all administrative remedies prior to seeking a waiver determination from the Commission).
14
Id. P 25 (finding unpersuasive the California Board’s and
Foothill Water Network’s argument that Yuba County benefitted
from its own inaction).
15
See 18 C.F.R. § 385.713(c)(3) (2019) (new matters may be
raised in a rehearing request only when “based on matters not
available for consideration by the Commission at the time of the
final decision or final order”). See also Balt. Gas & Elec. Co., 91
FERC ¶ 61,270, at 61,922 (2000) (“We look with disfavor on
parties raising on rehearing issues that should have been raised
earlier. Such behavior is disruptive to the administrative process
because it has the effect of moving the target for parties seeking
a final administrative decision.”).
16
See California Board April 2, 2020 comments; Foothills
Water Network April 2, 2020 comments.
76a
section 401. Further, notwithstanding the Commission’s
past construction of CWA section 401, we must resolve
cases before us based on current law, and the Hoopa
Valley court did not limit its ruling to prospective
cases.18 We see no justification for not applying Hoopa
Valley here.
17
The Commission orders:
California State Water Resources Control Board’s
and the Foothills Water Network’s requests for rehearing are hereby dismissed or denied, as discussed in the
body of this order.
By the Commission.
(SEAL)
Nathaniel J. Davis, Sr.
Deputy Secretary
17
18
Yuba Cty. Water Agency, 171 FERC ¶ 61,139 at P 25.
Pac. Gas & Elec. Co., 172 FERC ¶ 61,064 at P 39
(“notwithstanding the Commission’s past construction of section
401, we must resolve cases before us based on current law, and
the Hoopa Valley court did not limit its ruling to prospective
cases”); Pac. Gas & Elec. Co., 172 FERC ¶ 61,065 at P 33 (same);
S. Cal. Edison Co., 172 FERC ¶ 61,066 at P 35 (same); see Placer
Cty. Water Agency, 167 FERC ¶ 61,056 at P 15 (“The Hoopa Valley
court did not in any way indicate that its ruling was limited solely
to the case before it, and to conclude that the court’s decision does
not apply to similarly-situated cases would fail to give full effect
to that ruling. We are aware of no sound legal or equitable basis
for doing so.”); see also Constitution Pipeline Co., LLC, 169 FERC
¶ 61,199 at PP 29-34 (providing an in-depth discussion of the
Commission’s application of Hoopa Valley).
77a
APPENDIX F
171 FERC P 61240 (F.E.R.C.), 2020 WL 3350095
FEDERAL ENERGY REGULATORY COMMISSION
Commission Opinions, Orders and Notices
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee, and
James P. Danly.
Merced Irrigation District
Project Nos. 2179-043, 2467-020
ORDER ON WAIVER OF WATER QUALITY
CERTIFICATION
(Issued June 18, 2020)
1. On May 22, 2019, Merced Irrigation District
(Merced), licensee for both the Merced River Hydroelectric
Project No. 2179 (Merced River Project) and the
Merced Falls Hydroelectric Project No. 2467 (Merced
Falls Project), filed a request for the Commission to
determine that the California State Water Resources
Control Board (California Board or Board) waived its
authority under section 401(a)(1) of the Clean Water
Act (CWA)1 to issue water quality certification
regarding the relicensing of the two projects. This
order makes such a determination.
I.
Background
2. On April 18, 1964, the Commission issued
Merced an original 50-year license for the operation
and maintenance of the Merced River Project, located
on the Merced River on the border of Merced and
1
33 U.S.C. § 1341(a)(1) (2018).
78a
Mariposa Counties. The license expired on February
28, 2014, and Merced continues to operate the project
under an annual license.
2
3. On July 28, 1969, the Commission issued a 45year license for the operation and maintenance of the
Merced Falls Project, located on the Merced River in
Mariposa County, about 23 miles northeast of the city
of Merced and immediately downstream of the Merced
River Project.3 The license expired on March 1, 2014,
and Merced continues to operate the project under an
annual license.
4. On February 8, 2012, Pacific Gas & Electric
(PG&E), Merced’s predecessor as licensee, filed an
application for a new license for the Merced Falls
Project. On February 26, 2012, Merced filed an
application for a new license for the Merced River
Project. On March 24, 2014, Commission staff issued
a notice for each project accepting the respective
applications and indicating that each was ready for
environmental analysis.4
5. Section 401(a)(1) of the CWA requires that an
applicant for a federal license or permit to conduct
activities that may result in a discharge into the
navigable waters of the United States must provide
the licensing or permitting agency a water quality
2
Merced Irrigation District, 31 FPC 897 (1964).
3
Pacific Gas & Electric Co., 42 FPC 237 (1969). Pacific Gas and
Electric was the original licensee for the Merced Falls Project.
The license was transferred to Merced effective March 3, 2017,
making Merced the applicant for the new license. Pacific Gas
and Electric Co., 152 FERC ¶ 62,015 (2015) (order approving
transfer).
4
Commission staff conducted a joint environmental review
of the projects culminating in a single environmental impact
statement.
79a
certification from the state in which the discharge
originates or evidence of waiver thereof.5 If the state
“fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not
exceed one year) after receipt of such request,” then
certification is waived.6 Further, the licensing or
permitting agency may not grant a license or permit
until certification has been granted or waived.7
6. The California Board received PG&E’s and
Merced’s water quality certification requests on May
20, 2014,8 and May 21, 2014,9 respectively.10 The
Board’s June 6, 2014 acknowledgment letters for each
project were substantively identical and stated that
the “... letter initiates a one-year time deadline from
the date it was received for the [California Board] to
act on the request for [water quality certification] []”
and “... serves as a formal request for certification of
5
33 U.S.C. § 1341(a)(1). Section 401(d) provides that a
certification and the conditions contained therein shall become a
condition of any federal license or authorization that is issued. Id.
§ 1341(d). See City of Tacoma, Washington v. FERC, 460 F.3d 53
(D.C. Cir. 2006).
6
33 U.S.C. § 1341(a)(1).
7
Id.
8
Merced Request at Attachment 3 (Letter to FERC Filing
PG&E’s May 20, 2014, Letter to California Board Requesting 401
Water Quality Certification for the Merced Falls Project).
9
Merced Request at Attachment 2 (Letter to FERC Filing
Merced’s May 21, 2014, Letter to California Board Requesting
401 Water Quality Certification for the Merced River Project).
10
As required by section 5.23(b)(1)(ii) of the Commission’s
Rules and Regulations, 18 C.F.R. § 5.23(b)(1)(ii) (2019), PG&E
and Merced each filed a copy of the request with the Commission,
including proof of the date of receipt of the request.
80a
the Project.”
The Board did not suggest the
application was incomplete.12
11
7. On March 30, 2015, Commission staff issued a
joint draft environmental impact statement (EIS)
analyzing the effects of relicensing both projects. The
draft EIS noted that with respect to the projects, the
California Board had not yet acted on the certification
requests although it had filed preliminary conditions
for both projects on July 22, 2014.13
8. On April 21, 2015, the California Board emailed
Merced requesting that Merced “withdraw []and simultaneously resubmit” its water quality certification
prior to May 13, 2015, for the Merced River Project.14
On May 14, 2015, Merced withdrew and resubmitted
its certification application for the Merced River
Project with a two-page letter.15 Merced’s withdrawal
and resubmittal letter stated: “by copy of this letter,
Merced ID formally submits a new application. ... The
Project has not changed, so the April 23, 2014 FERC
11
Merced Request at Attachments 4 and 5 (California Board’s
June 6, 2014 Letters at 1).
12
See id. (noting in the respective Acknowledgment Letters
that that PG&E and Merced had satisfied the application filing
requirements specified in California Code of Regulations, Title
23, Section 3856).
13
Commission March 30, 2015 Draft Environmental Impact
Statement for the Merced Falls and Merced River Hydroelectric
Projects at 9, 12 (Draft EIS).
14
Merced Request at Attachment 21 (Board’s April 21, 2015
email to Merced). The Board’s email also invited Merced to
contact the Board staff “[i]f you have any questions regarding
this request or this process ....” There is no similar email in the
record regarding the Merced Falls Project.
15
Merced Request at Attachment 6 (Merced May 14, 2015
Letter to California Board).
81a
application, which the [Board] has on file, contains all
information required for a complete application for a
water quality certificate.”16
9. On May 6, 2015, PG&E withdrew and resubmitted its certification application for the Merced Falls
Project with a one-page letter.17 On May 29, 2015, the
California Board sent substantively identical acknowledgment letters to PG&E and Merced. The California
Board stated that PG&E’s and Merced’s withdrawal
and resubmittal request letters initiated a one-year
deadline from the date the California Board received
the letters to act on the request for certification, and
the new deadlines for certification action were May 6
and May 14, 2016, respectively.18 The Board’s letters
also stated that it might “request additional information to clarify, amplify, correct, or otherwise supplement the contents of the application.”19 The Board
further noted that “[i]ssuance of a certification is a
discretionary action that requires the State Water
Board to comply with [] [CEQA]” and that “[i]f the
information necessary for compliance with CEQA is
not provided to the [] Board, staff may recommend
denial of certification without prejudice.”20
16
Id.
17
Merced Request at Attachment 7 (PG&E May 6, 2015 Letter
to California Board).
18
Merced Request at Attachment 8 (California Board May 29,
2015 Letter to Merced at 1-2); id. at Attachment 9 (California
Board May 29, 2015 Letter to PG&E at 1-2).
19
Merced Request at Attachment 8 (California Board May 29,
2015 Letter to Merced at 2); id. at Attachment 9 (California Board
May 29, 2015 Letter to PG&E at 2).
20
Merced Request at Attachment 8 (California Board May 29,
2015 Letter to Merced at 2); id. at Attachment 9 (California Board
May 29, 2015 Letter to PG&E at 2).
82a
10. On May 29, 2015, the California Board filed
comments on the Commission’s draft EIS. The Board
asked that the Commission remove from the final EIS
the statement that the water quality certifications for
the projects were due on May 20, 2015, stating that
“[a] certified CEQA document is required prior to
acting on a WQC application. State Water Board staff
does not anticipate ... [a] certified CEQA document
prior to FERC’s release of the final EIS.”21
11. On December 4, 2015, Commission staff issued
the final EIS, recommending that the Commission
approve PG&E’s and Merced’s relicensing applications
with staff-recommended measures and conditions
from the forthcoming water quality certifications from
the California Board.
12. On May 4, 2016, PG&E again withdrew and
resubmitted its water quality certification for the
Merced Falls Project,22 as did Mercedon May 9, 2016.23
Thereafter, Merced, now as licensee for both the
Merced Falls and Merced River Projects, withdrew
and resubmitted certification applications for the
projects two additional times: on May 1, 201724 and
21
California Board May 29, 2015 Comments on Draft EIS at 8.
22
See Merced Request at Attachment 11 (PG&E’s May 4, 2016
Letter to California Board). PG&E noted in the letter that on
April 25, 2016, the Board notified it that its pending certification
application “would be expiring soon.”
23
See Merced Request at Attachment 10 (Merced’s May 9, 2016
Letter to California Board).
24
Merced Request at Attachment 14 (Merced’s May 1, 2017
Letter to California Board for the Merced Falls Project); id. at
Attachment 15 (Merced’s May 1, 2017, Letter to California Board
for the Merced River Project).
83a
April 24, 2018.
Each letter was substantively
identical to the 2015 withdrawal and resubmittal
letters. Further, Merced, in each of its letters, stated
that the “project has not changed” and that the FERC
application that the Board had on file contained all
information required for a complete application for
certification. Similar to its responses to the previous
withdrawal and resubmittal letters, the California
Board sent letters acknowledging the withdrawal and
resubmittal requests.26 The Board’s acknowledgment
letters each contained the same paragraph regarding
compliance with CEQA, stating that “[i]f the information necessary for compliance with CEQA is not
provided to the [] Board, staff may recommend denial
of certification without prejudice.”27
25
13. On January 25, 2019, the United States Court
of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued an opinion in Hoopa Valley Tribe v.
FERC,28 ruling that, where a state and an applicant
agree to repeatedly withdraw and refile the same
water quality certification request, the state has
waived certification.
25
Merced Request at Attachment 18 (Merced’s April 24, 2018,
Letter to California Board for the Merced Falls Project); id. at
Attachment 19 (Merced’s April 24, 2018, Letter to California
Board for Merced River Project).
26
Merced Request at Attachments 12, 13, 16, and 17
(appending the California Board’s May 10 & 23, 2016 and May
12, 2017 Acknowledgement Letters).
27
See, e.g., Merced Request at Attachment 13, California Board
May 23, 2016 Acknowledgement Letter at 2.
28
913 F.3d 1099 (D.C. Cir. 2019) (Hoopa Valley) (rejecting a
coordinated withdrawal-and-resubmission scheme between the
applicant and the state certifying agency).
84a
14. On April 22, 2019, the California Board issued
an order purporting to deny without prejudice Merced’s
requests for water quality certification, stating that
the “Board cannot issue a certification(s) for the
Projects until the CEQA process is complete,” and that
the CEQA process has not yet begun. The order also
stated that when “the application suffers from some
sort of procedural inadequacy (e.g. failure to ... meet
CEQA requirements), [] the [Water Board] may deny
the certification without prejudice.” Merced did not file
new requests for certification.
15. On May 22, 2019, Merced filed its request for
waiver determinations, citing Hoopa Valley and asking
the Commission to determine that the California
Board had waived its certification authority.29
16. The California Board and American Rivers,
American Whitewater, California Sportfishing Protection
Alliance, Friends of the River, Golden West Women
Flyfishers, Merced River Conservation Committee,
Northern California Council Fly Fishers International,
29
Merced styled its request for a waiver finding as a request
for clarification, rather than as either a motion or a petition for
declaratory order. We will act on Merced’s request under section
309 of the FPA. 16 U.S.C. § 825h (2018) (“The Commission shall
have power to perform any and all acts, and to prescribe, issue,
and make, amend, and rescind such orders, rules, and regulations
as it may find necessary or appropriate to carry out the provisions
of this chapter.”). Going forward, when a party requests that the
Commission find a State has waived its right to issue a water
quality certification, the party should file its request as a petition
pursuant to section 385.207 of our Rules of Practice and
Procedure. 18 C.F.R. § 385.207(a) (2019) (“A person must file a
petition when seeking ... (2) [a] declaratory order or rule to
terminate a controversy or remove uncertainty; ... or (5) [a]ny
other action which is the discretion of the Commission and for
which this chapter prescribes no other form of pleading.”).
85a
and Trout Unlimited (collectively, Conservation Groups)
filed responses to Merced’s request asking that the
Commission find the California Board has not waived
certification.30
II. Discussion
17. The “waiver” provision in section 401(a)(1) of the
CWA is at issue here. As noted above, under section
401 of the CWA, if a state certifying agency “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 [section 401] shall be waived with
respect to such federal application.”31
18. For the reasons discussed below, we find that
the California Board waived its authority under
section 401.
A. Hoopa Valley and Commission Precedent
19. In Hoopa Valley, the D.C. Circuit found that “a
state waives its Section 401 authority when, pursuant
to an agreement between the state and applicant, an
applicant repeatedly withdraws-and-resubmits its
request for water quality certification over a period of
time greater than one year.”32 The court concluded
that where a licensee each year sent a letter indicating
withdrawal of its certification request and resubmis-
30
California Board June 27, 2019 Response (filed July 3, 2019
with the Commission); Conservation Groups June 28, 2019
Response. The Conservation Groups and the California Board are
parties to both relicensing proceedings.
31
33 U.S.C. § 1341(a)(1).
32
913 F.3d at 1103.
86a
sion of the same, “[s]uch an arrangement does not
exploit a statutory loophole; it serves to circumvent
[FERC’s] congressionally granted authority over the
licensing, conditioning, and developing of a hydropower project.”34 In fact, “[b]y shelving water quality
certifications, the states usurp FERC’s control over
whether and when a federal license will issue. Thus, if
allowed, the withdrawal-and-resubmission scheme
could be used to indefinitely delay federal licensing
proceedings and undermine FERC’s jurisdiction to
regulate such matters.”35
33
20. Following Hoopa Valley, the Commission found
that the California Board waived its section 401
authority in Placer County Water Agency.36 In Placer
County, the Commission held that a formal agreement
between a licensee and a state was not necessary to
support a finding of waiver; rather, the exchanges
between the entities could amount to an ongoing
agreement.37 The Commission found that the record
showed that the entities worked to ensure that the
33
In Hoopa Valley, the court noted that before each calendar
year passed, the applicant sent a “letter indicating withdrawal of
its water quality certification request and resubmission of the
very same ... in the same one-page letter ....” Id. at 1104 (emphasis
in original).
34
Id.
35
Id.
36
167 FERC ¶ 61,056, reh’g denied, 169 FERC ¶ 61,046 (2019)
(Placer County).
37
Placer County, 167 FERC ¶ 61,056 at P 16; see also
McMahan Hydroelectric, LLC, 168 FERC ¶ 61,185, at PP 33-38
(2019); see also Pacific Gas and Electric Co., 170 FERC ¶ 61,232,
at P 27 (2020) (Pacific Gas and Electric); Southern California
Edison Co., 170 FERC ¶ 61,135, at P 23 (2020) (Southern
California Edison).
87a
withdrawal and refiling happened each year,38 given
that the licensee submitted evidence that the California
Board sent it emails about each upcoming one-year
deadline for the purpose of eliciting a withdrawal and
resubmission.39 Based on this functional agreement
and the fact that Placer County never filed a new
application, the Commission concluded that the
process caused lengthy delay and found that the state
waived its certification authority.40
21. Similarly, in Southern California Edison,41 the
Commission found that the California Board waived
its section 401 authority with respect to the relicensing of six projects that comprise the Big Creek
hydroelectric system. There, the Commission rejected
the Board’s argument that Hoopa Valley was not
applicable. While there was no explicit agreement
between the applicant and the Board, the Commission
found that the record showed the Board directly
participated in the withdrawal and resubmittal scheme.
The Board staff sent emails in some years ahead of the
upcoming one-year deadline that explicitly requested
withdrawal and resubmittal.42 In addition, the Board,
commenting on the draft EIS, stated that “[i]f the one
year federal period for certification is insufficient for
the [] Board to act, staff will recommend that
[Southern California Edison] withdraw and resubmit
their request for [water quality certification] for the
six Big Creek Projects.”43 The Commission found this
38
Placer County, 167 FERC ¶ 61,056 at P 12.
39
Placer County, 169 FERC ¶ 61,046 at P 17.
40
Id. PP 12, 18.
41
170 FERC ¶ 61,135 (2020).
42
Id. P 25.
43
Id. P 24; see also id. PP 23-29.
88a
evidence sufficiently demonstrated the state’s coordination with the licensee and supported a waiver
finding.44
22. Thereafter, in Pacific Gas and Electric, the
Commission found that the California Board waived
its section 401 authority with respect to the surrender
of the Kilarc-Cow Creek Hydroelectric Project No. 606,
again stating that an explicit agreement between the
applicant and the Board was not necessary to find
waiver.45 We found that the record showed that the
Board expected the applicant to withdraw and refile
its certification application and the applicant cooperated.46 In its comments on the EIS, the Board indicated
that the “usual process” involved the applicant voluntarily withdrawing and refiling its application.47
Moreover, the Commission found unavailing the
Board’s assertion that it could not issue a water
quality certification until the CEQA process was
complete, which often takes more than one year, and
determined that the general principle from Hoopa
Valley still applied.48 The Commission found, as it had
previously, that a “state’s reason for delay [is]
immaterial.”49
23. Most recently, in Nevada Irrigation District50
and Yuba County Water Agency,51 we again found that
44
Id. P 25.
45
170 FERC ¶ 61,232 at P 27 (2020).
46
Id.
47
Id.
48
Id. PP 31-33.
49
Id. P 35 (citing Placer County, 169 FERC ¶61,046 at P 20).
50
171 FERC ¶ 61,029 (2020).
51
171 FERC ¶ 61,139 (2020).
89a
the Board waived its authority to issue a water quality
certification where the applicant withdrew and resubmitted its application numerous times, even when an
explicit agreement was not in place. The Commission
found unpersuasive the arguments that Nevada
Irrigation District and Yuba County Water Agency, as
the respective lead agencies for CEQA, controlled the
timing for the CEQA analysis, and reiterated that
“state’s reason for delay [is] immaterial.”52
B. Application of Hoopa Valley and Commission Precedent to the Relicensing Proceeding
for the Merced Falls and Merced River
Projects
24. The California Board and Conservation Groups
claim that the Board did not waive its authority under
section 401, as interpreted and applied in Hoopa
Valley.53 They claim: (i) there was no formal agreement
for Merced to withdraw and resubmit its applications;
(ii) Merced acted voluntarily and unilaterally in doing
so each year before the deadline and that an applicant’s decision to withdraw its request for certification
before expiration of the certification period eliminates
any need to approve or deny the withdrawn request;
(iii) that unlike Hoopa Valley, Merced is not a dependent third party seeking waiver; (iv) Merced’s failure to
prepare and submit CEQA documents caused delay
and precluded the Board’s issuance of certifications;
and (v) that the Board’s issuance of certifications even
52
Nevada Irrigation District, 171 FERC ¶ 61,029 at P 28; Yuba
County Water Agency, 171 FERC ¶ 61,139 at P 25.
53
California Board June 27, 2019 Response at 1; Conservation
Groups June 28, 2019 Response at 7.
90a
if taking longer than one year would not delay the
Commission’s licensing proceeding.54
1. Formal Agreement Not Necessary to
Find Waiver; California Board Was
Complicit
25. Both the Board and Conservation Groups argue
that there was no formal agreement regarding Merced’s
withdrawal and resubmittal and no agreement to
delay the issuance of the certification.55 Instead, the
Board claims that Merced voluntarily and unilaterally
withdrew and resubmitted its application each year
before the deadline.56
26. As we have stated previously, an explicit
written agreement to withdraw and resubmit is not
necessary.57 The facts in this proceeding are similar to
those in Pacific Gas and Electric, in that there is
sufficient evidence to determine that the Board expected
Merced to withdraw and resubmit its application and
Merced did so. This expectation is underlined in the
April 21, 2015 email from the Board to Merced, which
stated: “Merced Irrigation District’s application for
water quality certification for the Merced River Hydroelectric Project, FERC Project No. 2179 expires on
May 21, 2015. Please withdraw the [application] and
54
California Board June 27, 2019 Response at 2-4; Conservation Groups June 28, 2019 Response at 3-6.
55
California Board June 27, 2019 Response at 2; Conservation
Groups June 28, 2019 Response at 3.
56
57
California Board June 27, 2019 Response at 2-3.
See Pacific Gas and Electric, 170 FERC ¶ 61,232 at P 27;
Southern California Edison, 170 FERC ¶ 61,135 at P 23; Placer
County, 167 FERC ¶ 61,056 at PP 16-18; see also Constitution
Pipeline Co., LLC, 168 FERC ¶ 61,129 at PP 33-34 (2019)
(Constitution).
91a
simultaneously resubmit an application for water
quality certification prior to May 13, 2015.”58
27. With respect to the applications for both
projects, the Board acknowledged when it commented
on the draft EIS, and in every letter acknowledging
the receipt of PG&E’s and Merced’s resubmitted
applications, that water quality certification cannot be
issued without a final CEQA document.59 The letters
accepting PG&E’s and Merced’s withdrawals and
resubmittals also included general language that the
Board might request additional information regarding
the applications,60 but there is no evidence that the
Board ever did so from 2014 until it purported to act
in 2019. The Board’s explanation for denying certification in 2019 was that Merced as lead agency “ha[d] not
begun the CEQA process” for the Projects,61 but as we
have previously concluded, the Board cannot rely on a
state regulatory process (i.e., CEQA) over which it has
potentially limited control over timing and that often
takes more than one year to complete to excuse
compliance with the CWA.62
58
Merced Request at Attachment 21 (Board’s April 21, 2015
email to Merced).
59
California Board May 29, 2015 Comments on Draft EIS at 4;
Merced Request at Attachments 8, 9, 12, 13, 16, and 17
(appending the California Board’s May 29, 2015, May 10 & 23,
2016 and May 12, 2017 Acknowledgement Letters).
60
Merced Request at Attachments 8, 9, 12, 13, 16, and 17
(appending the California Board’s May 29, 2015, May 10 & 23,
2016 and May 12, 2017 Acknowledgement Letters).
61
California Board April 22, 2019 Denial without Prejudice
of Water Quality Certification Application (filed with the
Commission on April 23, 2019).
62
Nevada Irrigation District, 171 FERC ¶ 61,029 at P 28.
92a
28. The Board alleges that Merced presumably
withdrew its requests voluntarily to avoid the Board
denying its application.63 We rejected a similar
argument in prior proceedings. In Southern California
Edison, we found that the California Board had
waived its water quality certification authority based
on the fact that in the eight years of the applicant
effectuating a withdrawal and resubmittal of its
application with a single page letter, the applicant
never filed a new application or any new supporting
information.64 In reaching this decision, we also relied
on record evidence that showed the Board’s direct
participation in the withdrawal and resubmittal
scheme, namely annual reminder emails sent to the
licensee just before the one-year deadline, requesting
withdrawal and resubmission of the application.65 We
further concluded that:
[e]ven absent this evidence, prior to and upon
receipt of each withdrawal, the California Board
had the option of denying certification within
the one year it was afforded under the CWA.
Therefore, by accepting each of [the licensee’s]
withdrawal/resubmission letters, the California
Board consented to the scheme of resetting the
one-year deadline.66
63
California Board June 27, 2019 Response at 2-3.
64
170 FERC ¶ 61,135 at P 28; see also Constitution, 168 FERC
¶ 61,129 at PP 32-37 (rejecting the state’s argument that the
applicant voluntarily resubmitted two certification requests in
response to the state’s indication that more time was necessary
to obtain and review additional information).
65
Southern California Edison, 170 FERC ¶ 61,135 at P 25.
66
Id.
93a
29. Here, too, we find, based on the four years of
the applicants withdrawing and resubmitting their
applications with nearly identical two-page letters and
without filing a new application or any new supporting
information, that the California Board de facto consented to the applicants’ withdrawal and resubmission
for the purpose of avoiding the CWA’s one-year deadline. Accordingly, just as we found in Placer County,
Southern California Edison, Pacific Gas and Electric,
Nevada Irrigation District, and Yuba County Water
Agency,67 the California Board’s actions, whether
implied or explicit, constituted a failure to act within
the one-year deadline of section 401 and thus waived
certification.
30. The Board argues that “[c]onsistent with logic
and Commission precedent, ... an applicant’s decision
to withdraw its request for certification before expiration of the certification period eliminates any need to
approve or deny the withdrawn request.”68 We disagree.
In Hoopa Valley, the court faulted the Commission for
concluding that although the many resubmissions
from the hydroelectric license applicant “involved the
same [p]roject, each resubmission was an independent
request, subject to a new period of review.”69 Despite
previous Commission orders concluding that once an
application is withdrawn, the refiling restarts the oneyear period, the court explained that a state’s obligation “to act on a request for certification” within one
67
Placer County, 169 FERC ¶ 61,046 at P 18; Southern
California Edison, 170 FERC ¶ 61,135 at P 25; Pacific Gas and
Electric, 170 FERC ¶ 61,232 at P 27; Nevada Irrigation District,
171 FERC ¶ 61,029 at P 23; Yuba County Water Agency, 171
FERC ¶ 61,139 at P 20.
68
California Board June 27, 2019 Response at 3.
69
913 F.3d at 1104.
94a
year applies to a specific request and “cannot be
reasonably interpreted to mean that the period of review
for one request affects that of any other request.”70
31. The Board and Conservation Groups further
claim that Merced’s waiver request is distinct from the
waiver request in Hoopa Valley, where the party
claiming waiver was a dependent third party that did
not control the timing of water quality certification.71
The Commission recently addressed a similar argument in Southern California Edison, explaining that
nothing in Hoopa Valley rested on the identity of the
party that brought the case.72 Instead, the Hoopa
Valley decision interpreted the legal requirements of the
CWA, which should not differ based on the identity of
the litigants.73 We affirm that finding here.
2. CEQA Requirements Cannot Circumvent the CWA’s One-Year Deadline for
Action
32. The California Board and Conservation Groups’
argument that, because Merced is the lead agency74 for
CEQA and controls the timing for CEQA compliance,
Merced should not benefit from its own inaction in
failing to bring the water quality certification process
70
Id.
71
California Board June 27, 2019 Response at 3; Conservation
Groups June 28, 2019 Response at 4.
72
Southern California Edison, 170 FERC ¶ 61,135 at P 31
(citing Placer County, 167 FERC ¶ 61,056 at P 14).
73
74
Id.
While Merced has always been the lead agency for the
Merced River Project, the California Board was the lead agency
for compliance with CEQA for the Merced Falls Project from May
2014 through February 2017, at which time the license was
transferred from PG&E to Merced. Merced Request at 4.
95a
to completion is unpersuasive.75 The Board states
that as a responsible agency it cannot make use of
environmental documentation or approve a project
until the lead agency completes its responsibilities
under the CEQA.76 We find that the California Board’s
contention that Merced alone is responsible for the
delay in issuance of a water quality certification
ignores the Board’s own role in the process. The state’s
reliance on a regulatory process (i.e., CEQA) over
which it has potentially limited control over timing
and that often takes more than one year to complete
does not excuse compliance with the CWA. Moreover,
as we have explained, the “state’s reason for delay [is]
immaterial.”77 “The plain language of [s]ection 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.”’78 Accordingly, a state
may not extend the one-year deadline to act even if a
state process may, in practice, often take more than a
year to complete.79 We note that to the extent a state
75
California Board June 27, 2019 Response at 3; Conservation
Groups June 28, 2019 Response at 5-6.
76
California Board June 27, 2019 Response at 3.
77
Placer County, 169 FERC ¶ 61,046 at P 20; see also
Constitution, 168 FERC ¶ 61,129 at P 37.
78
New York DEC v. FERC, 884 F.3d 450, 455 (2d Cir. 2018)
(citing Alabama Rivers All. v. FERC, 325 F.3d 290, 296-97 (D.C.
Cir. 2003)); see also Hoopa Valley, 913 F.3d at 1101 (citing Alcoa
Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir.
2011)).
79
See, e.g., Nevada Irrigation District, 171 FERC ¶ 61,029 at P
27 (referencing the California Board’s comment that the water
quality certification could not be issued until the Board’s CEQA
process was complete and the applicant would likely need to
withdraw and resubmit its certification application).
96a
lacks sufficient information to act on a certification
request, it has a remedy: it can deny certification.80
Delay beyond the statutory deadline, however, is not
an option.81
3. ESA Consultation During Relicensing
Does Not Alter the One-Year Deadline of
the CWA
33. The Board and Conservation Groups argue that
finding waiver here would serve no purpose, because
the Commission cannot issue a license until ESA
consultation is complete.82 Regardless of whether a
water quality certification decision is the sole factor
delaying a licensing proceeding, the general principle
from Hoopa Valley still applies: where an applicant
withdraws and resubmits a request for water quality
certification to avoid section 401’s one-year time limit,
80
Indeed, the state has codified a practice along these lines.
See Cal. Code Regs, tit. 23, § 3836(c) (“If an application is
determined to be complete by the certifying agency, but CEQA
requires that the certifying agency review a final environmental
document before taking a certification action, an extension of the
federal period for certification cannot be obtained, and the federal
period for certification will expire before the certifying agency can
receive and properly review the necessary environmental documentation, the certifying agency shall deny without prejudice
certification for any discharge resulting from the proposed
activity unless the applicant in writing withdraws the request for
certification.”) (emphasis added).
81
See Hoopa Valley, 913 F.3d at 1104-1105 (“Congress
intended Section 401 to curb a state’s ‘dalliance or unreasonable
delay’ .... This Court has repeatedly recognized that the waiver
provision was created ‘to prevent a State from indefinitely
delaying a federal licensin
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