Amicus Curiae Brief — Nevada Irrigation District, et al., Petitioners v. California State Water Resources Control Board, et al.

No. 22-743

In the Supreme Court of the United States

NEVADA IRRIGATION DISTRICT, ET AL.,

PETITIONERS,

v.

CALIFORNIA STATE WATER RESOURCES

CONTROL BOARD, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF HYDROPOWER AMICI CURIAE IN

SUPPORT OF PETITIONERS

CHARLES R. SENSIBA

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street, NW

Suite 1000

Washington, DC 20004

MISHA TSEYTLIN

Counsel of Record

KAITLIN L. O’DONNELL

KEVIN M. LEROY

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae

QUESTION PRESENTED

Whether California “fail[ed] or refuse[d] to act” on

Petitioners’ requests for water quality certification

within one year, as Section 401 of the Clean Water

Act requires, 33 U.S.C. § 1341(a)(1), by establishing

the withdraw-and-refile practice to give the State

“more time to decide,” App.8a, project applicants’

certification requests.

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES ..................................... iii

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................5

ARGUMENT ...............................................................7

I.

The Circuits Are Divided Over When States

May Engage In Bilateral Schemes To Buy

Themselves More Time To Perform Their

Section 401 Review...........................................7

II. By Engaging In Bilateral Schemes To

Prolong Water Quality Certification

Review, States Unlawfully Evade Section

401’s One-Year Rule .......................................17

III. States’ Efforts To Undermine Section 401’s

One-Year Deadline Harm The Hydropower

Industry And The Nation’s Supply Of

Electric Energy ...............................................20

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Rivers All. v. FERC,

325 F.3d 290 (D.C. Cir. 2003) ............................... 9

Alcoa Power Generating Inc. v. FERC,

643 F.3d 963 (D.C. Cir. 2011) ................... 9, 20, 24

Am. Rivers, Inc. v. FERC,

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

Bostock v. Clayton County,

140 S. Ct. 1731 (2020)......................................... 18

California v. FERC,

495 U.S. 490 (1990)............................................... 7

Delaware v. Pennsylvania,

598 U.S. ___, 2023 WL 2247231 (2023).............. 19

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

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

Griffin v. Oceanic Contractors, Inc.,

458 U.S. 564 (1982)............................................. 19

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019) ............................. 6

N.C. Dep’t of Env’tl Quality v. FERC,

3 F.4th 655 (4th Cir. 2021) ..................... 16, 17, 19

iv

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

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

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

991 F.3d 439 (2d Cir. 2021) ...............12, 13, 18, 19

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

Ecology,

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

S.D. Warren Co. v. Me. Bd. of Env’tl Prot.,

547 U.S. 370 (2006)............................................... 8

Statutes

16 U.S.C. § 797 ........................................................... 8

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

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

33 U.S.C. § 1341 ...................................... i, 8, 9, 12, 18

Other Authorities

115 Cong. Rec. 9,264 (Apr. 16, 1969)................... 9, 20

Andrew G. Lawson, Streamlining the

Hydropower Licensing Process: What’s up

with the Dam Licensing, 52 Suffolk U. L. Rev.

109 (2019) ............................................................ 21

Charles R. Sensiba, Michael A. Swiger, & Sharon

L. White, Deep Decarbonization and

Hydropower, 48 Env’tl L. Rep. 10309 (2018) ..... 25

v

Claudia Copeland, Cong. Res. Serv., Clean Water

Act Section 401: Background and Issues (July

2, 2015) ................................................................ 10

Dierdre Duncan & Clare Ellis, Clean Water Act

Section 401: Balancing States’ Rights and the

Nation’s Need for Energy Infrastructure, 25

Hastings Env’tl L.J. 235 (2019).......................... 10

H.R. Rep. No. 91-940 (Mar. 24, 1970)

(Conf. Rep.).......................................................... 20

James H. Williams et al., Energy & Env’tl

Economics, Inc. et al., Pathways to Deep

Decarbonization in the United States, US

2050 Report, Volume 1: Technical Report

(2014) ................................................................... 24

S. Hrg. 105-381, 105th Cong. 55 (1997) .................. 23

Staff of Fed. Energy Regulatory Comm’n, AD139-000, Report on the Pilot Two-Year

Hydroelectric Licensing Process for NonPowered Dams and Closed-Loop Pumped

Storage Projects and Recommendations

(2017) ................................................................... 23

U.S. Dep’t of Energy, Hydropower Vision: A New

Chapter for America’s 1st Renewable

Electricity Source (2016) .............................. 22, 24

U.S. Dep’t of Energy, Hydropower’s Contributions

to Grid Resilience (Oct. 2021)............................. 21

vi

U.S. Dep’t of Energy, Nat’l Renewable Energy

Lab., Workforce Development for U.S.

Hydropower: Key Trends and Findings (July

2019) .................................................................... 22

U.S. Dep’t of Energy, Off. of Energy Efficiency &

Renewable Energy, Benefits of Hydropower ..... 22

U.S. Dep’t of Energy, Off. of Energy Efficiency &

Renewable Energy, Hydropower Basics ............ 21

U.S. Energy Information Admin., Frequently

Asked Questions, What Is U.S. Electricity

Generation by Source ......................................... 21

INTEREST OF AMICI CURIAE1

Amici Curiae National Hydropower Association

(“NHA”), Kings River Conservation District

(“KRCD”), South Feather Water & Power Agency

(“SFWPA”), Northwest Public Power Association

(“NWPPA”), Northwest Hydroelectric Association

(“NWHA”), Modesto Irrigation District (“MID”),

Turlock Irrigation District (“TID”), Rye Development

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

County, Washington (“Snohomish”) (together,

“Hydropower Amici”) consist of trade associations

representing the hydropower industry nationwide as

well as electric utilities, water districts, and other

hydropower project owners and operators, each of

whom may be affected by the Court’s decision here.

NHA is a nonprofit trade association that

represents the hydropower industry nationwide.

NHA is dedicated exclusively to preserving and

expanding clean, renewable, affordable hydropower

and marine energy resources across the country.

Currently, NHA has over 300 member organizations

who span the entire hydropower industry supply

1 Pursuant to Rule 37.2, Amici provided timely notice to all

parties of their intent to file this amicus brief. Further, per this

Court’s Rule 37.6, Amici affirm that no counsel for a party

authored this brief in whole or in part, and that no party, counsel

for a party, or any person other than Amici, their members, or

their counsel made a monetary contribution intended to fund the

preparation or submission of this amicus brief.

2

chain, from large power generators to service and

equipment providers. As particularly relevant here,

members of NHA are regularly involved in

hydropower licensing or relicensing proceedings

before Respondent the Federal Energy Regulatory

Commission (“FERC”), and must comply with Section

401’s requirement to obtain a water quality

certification (or a waiver) from the State.

KRCD is a California public agency created in

1951 by the Kings River Conservation Act. KRCD

was formed to be the local agency responsible for the

operations and maintenance of the U.S. Army Corps

of Engineers’ flood control project downstream from

Pine Flat Dam for safe passage of flood water in the

Kings River channel. KRCD is the FERC licensee for

the 165-megawatt Jeff L. Taylor Pine Flat

Hydroelectric Project, the license for which expires in

2029.

SFWPA is a California Irrigation District formed

under California Water Code Division 11. SFWPA

provides treated and raw water service to thousands

of customers. SFWPA owns the 117-megawatt South

Feather Power Project—consisting of eight dams,

nine tunnels, twenty-one miles of canals and

conduits, and four hydroelectric power plants—which

is in the FERC relicensing process.

NWPPA is an electrical utility trade association

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

3

and Canada. NWPPA is dedicated to serving the

interests of its members and their millions of public

electric utility customers. The central mission of

consumer-owned utilities is to serve their

communities with reliable and low-cost power on a

not-for-profit basis. NWPPA has continuously been

an advocate for public power on behalf of its member

utilities.

NWHA is a non-profit trade association that

represents and advocates on behalf of the Northwest

hydroelectric industry. NWHA has approximately

130 members from all segments of the industry.

NWHA is dedicated to the promotion of the Northwest

region’s waterpower as a clean, efficient energy

source while protecting the fisheries and

environmental quality that characterize the region.

MID and TID are California Irrigation Districts

formed under California Water Code Division 11,

which both provide electric and water services for

their customers. MID and TID own and operate

hydropower projects, including the Don Pedro Project

and the La Grange Project. The Don Pedro Project is

a 168-megawatt hydroelectric facility on the

Tuolumne River in California’s Tuolumne County,

and the La Grange Project is a 4.7-megawatt

hydroelectric project about two miles downstream, in

Tuolumne and Stanislaus Counties. The Don Pedro

Project and the La Grange Project are in the FERC

licensing or relicensing process.

4

Rye is a leading developer of new low-impact

hydropower energy generation and energy storage in

the United States. Among other projects, Rye leads

the development of the proposed Kentucky River Lock

and Dam No. 11 Hydroelectric Project (Kentucky),

Overton Lock and Dam Project (Louisiana), Enid

Lake Hydroelectric Project (Mississippi), Beverly

Lock and Dam Water Power Project (Ohio), Swan

Lake Project (Oregon), Allegheny Lock and Dam 2

Hydroelectric Project (Pennsylvania), Goldendale

Project (Washington), and Morgantown Lock and

Dam Hydroelectric Project (West Virginia).

Snohomish

is

a

Washington

municipal

corporation, formed by a majority vote of the people in

1936 for the purpose of providing electric and water

utility service. Snohomish is the second largest

consumer-owned utility in Washington and has

experienced rapid growth within its service territory

in recent years. Snohomish owns and operates

several

FERC-licensed

hydropower

projects,

including the 112-megawatt Henry M. Jackson

Hydroelectric Project.

Snohomish has recently

developed two run-of-the-river hydroelectric projects,

which will generate enough clean energy annually to

serve up to 10,000 homes.

Hydropower Amici share Petitioners’ interest in

ensuring that States comply with Section 401’s oneyear deadline, and regularly file amicus briefs in

cases of importance to Amici, including cases

involving Section 401. See, e.g., Br. of Hydropower

5

Amici in Support of Pet’rs, Turlock Irrigation Dist. v.

FERC, No.22-616 (U.S. Feb. 6, 2023); Br. of the Nat’l

Hydropower Assoc., the Nw. Hydroelec. Assoc., Nw.

RiverPartners & the Utility Water Act Grp. as Amici

Curiae in Support of Pet’rs, State Water Contractors

v. Jewell, No.14-402 (U.S. Nov. 5, 2014); Br. of Nat’l

Hydropower Assoc., Nw. Hydroelec. Assoc., Am. Pub.

Power Assoc., Sabine River Auth. of Tex., Sabine

River Auth. State of La., and Oglethorpe Power Corp.

as Amicus Curiae in Support of Defendant-AppellantCross Appellee U.S. EPA, Catskill Mountains Ch. of

Trout Unltd., Inc. v. EPA, No.14-1823 (2d Cir. Sept.

18, 2014).

INTRODUCTION AND

SUMMARY OF ARGUMENT

Section 401 of the Clean Water Act establishes a

one-year deadline for States to act on a hydropower

project’s request for a water quality certification.

That certification is, in turn, a necessary step in the

federal licensing process for hydropower projects, as a

federal license cannot issue unless the State grants

certification or waives its Section 401 certification

authority.

The Ninth Circuit’s decision below

undermines Section 401’s express terms and deepens

a circuit split. Under the Ninth Circuit’s approach,

States can effectively mandate that hydropower

projects take part in a scheme where the applicants

withdraw and resubmit their Section 401 water

quality certification requests year after year, buying

States as much time as they desire over the statutory

6

one-year limit, so long as States do not formalize that

requirement in written contracts or directives.

The Courts of Appeals are divided on when a

State’s conduct is ineffective in extending Section

401’s no-more-than-one-year time limit for State

action through the use of a bilateral scheme that

involves both the State and the Section 401 applicant.

On one side of the split, the D.C. and Second Circuits

have held that “a full year is the absolute maximum,”

Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104

(D.C. Cir. 2019), cert. denied sub nom. Cal. Trout v.

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

such that any coordinated arrangement between a

State and a Section 401 applicant to expand the

State’s review period beyond the one year provided in

the statute violates Section 401’s clear terms. The

Ninth and Fourth Circuits, by contrast, have held

that coordinated arrangements of this sort are

permissible unless the State formalizes those

arrangements in a written agreement or directive.

That distinction—whether a bilateral scheme

undertaken at the State’s demand is memorialized in

a formal agreement or directive—has no basis in the

statute’s language or design.

The hydropower industry will suffer absent this

Court’s intervention and reversal of the Ninth

Circuit’s misguided approach. Hydropower is our

Nation’s most mature, low-cost, efficient, and reliable

renewable energy resource, and Section 401’s oneyear rule is critical to ensuring the timeliness of

7

federal hydropower licensing. If States can draw out

for years their Section 401 review processes through

schemes of the type that the Ninth Circuit blessed by

simply declining to reduce those schemes to explicit

agreements or directives, these critical projects will

be delayed for many years or even decades. That

would have deeply negative consequences for the

power grid’s reliability, the goal of providing clean

energy, and the well-being of local communities that

rely on the hydropower industry for jobs.

This Court should grant the Petition.

ARGUMENT

I.

The Circuits Are Divided Over When States May

Engage In Bilateral Schemes To Buy Themselves

More Time To Perform Their Section 401 Review

The Ninth Circuit’s decision below deepens a split

among the Courts of Appeals on the issue of when a

bilateral scheme—that is, a scheme that involves

actions by both the State and the requestor, working

in tandem—is ineffective in evading the one-year

limit found in Section 401 of the Clean Water Act.

1. The Federal Power Act (“FPA”) gives FERC

exclusive licensing authority over many hydropower

projects, ensuring “a broad federal role in the

development and licensing of hydroelectric power.”

California v. FERC, 495 U.S. 490, 496 (1990); First

Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 180–81

8

(1946); see 16 U.S.C. § 797(e). Under the FPA, FERC

alone is responsible for issuing licenses authorizing

the construction, operation, and maintenance of new

and existing federal hydroelectric projects. 16 U.S.C.

§§ 797(e), 808, 817. Congress enacted the FPA and its

predecessor statute, the Federal Water Power Act of

1920, “to secure a comprehensive development of

national resources,” and the statute’s “long and

colorful legislative history” evidences “a vigorous

determination of Congress to make progress with the

development of the long idle water power resources of

the nation” by creating “a complete scheme of national

regulation.” First Iowa, 328 U.S. at 171, 180–81.

States play an important, but deliberately timelimited, role in this FERC licensing process. States

have the authority under Section 401 of the Clean

Water Act (“CWA”) to grant, grant with conditions,

deny, or waive water quality certifications for any

federally licensed or permitted activity that “may

result in any discharge into the navigable waters”

within the State’s jurisdiction. 33 U.S.C. § 1341(a)(1).

Federal hydropower projects must receive a water

quality certification from each relevant State before

FERC may issue a license unless the State waives its

Section 401 certification authority. Id. (“No license or

permit shall be granted until the certification

required by this section has been obtained or has been

waived[.]”). Hydropower projects must also obtain a

new Section 401 certification prior to relicensing and

for certain license amendments. See S.D. Warren Co.

v. Me. Bd. of Env’tl Prot., 547 U.S. 370, 374–75 (2006);

9

Ala. Rivers All. v. FERC, 325 F.3d 290, 292 (D.C. Cir.

2003). FERC is required to include any conditions

contained in the State’s Section 401 certification in

the federal license. See 33 U.S.C. § 1341(d); PUD No.

1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511

U.S. 700, 722 (1994); Am. Rivers, Inc. v. FERC, 129

F.3d 99, 110 (2d Cir. 1997).

Importantly for this case, Congress has imposed a

strict one-year deadline for States to act on a Section

401 certification request: 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.” 33 U.S.C.

§ 1341(a)(1). This prevents States from “indefinitely

delaying a federal licensing proceeding by failing to

issue a timely water quality certification.” Alcoa

Power Generating Inc. v. FERC, 643 F.3d 963, 972

(D.C. Cir. 2011); see 115 Cong. Rec. 9,264 (Apr. 16,

1969) (statement of Rep. Edmondson) (noting that a

state’s delay “could kill a proposed project just as

effectively as an outright determination on the merits

not to issue the required certificate”).

Seeking to evade Section 401’s one-year limit,

States have devised various schemes that purport to

afford a State more time to perform its water quality

certification review. In the scheme at issue here, the

State effectively requires an applicant to withdraw

and then resubmit its application as the one-year

10

deadline approaches, “taking the position that the

waiver clock starts anew with each resubmittal.”

Dierdre Duncan & Clare Ellis, Clean Water Act

Section 401: Balancing States’ Rights and the

Nation’s Need for Energy Infrastructure, 25 Hastings

Env’tl L.J. 235, 244 (2019). Through the use of such

bilateral schemes, as well as the unilateral denialwithout-prejudice scheme at issue in a different

Petition currently before this Court,2 certain States

have obstructed for years the federal licensing process

for hydropower facilities; indeed, even though Section

401 imposes a maximum one-year time limit on state

water quality certification review, “the most common

cause of delayed hydropower licensing proceedings is

untimely receipt of state water quality certification”

under Section 401. Claudia Copeland, Cong. Res.

Serv., Clean Water Act Section 401: Background and

Issues 6 (July 2, 2015).3 As noted by the D.C. Circuit

in 2019, “twenty-seven of the forty-three licensing

applications before FERC were awaiting a state’s

water quality certification, and four of those had been

2 In the denial-without-prejudice scheme, the State issues a

pro-forma denial letter to the Section 401 applicant immediately

before the one-year deadline expires, with an instruction that

the requestor resubmit the same certification request if the

requestor ever wants to obtain the required Section 401

certification. This unilateral scheme is at issue in a pending

Petition for a Writ of Certiorari, where many of the Hydropower

Amici here have also urged this Court’s review. See Br. of

Hydropower Amici in Support of Pet’rs, Turlock Irrigation Dist.

v. FERC, No.22-616 (U.S. Feb. 6, 2023).

3 Available at https://sgp.fas.org/misc/97-488.pdf.

11

pending for more than a decade.” Hoopa Valley, 913

F.3d at 1104; see also infra Part III.

2. The Courts of Appeals are divided on when a

State can use a bilateral scheme to give itself more

than one year to decide a Section 401 certification

request. On one side of the split, the D.C. Circuit and

the Second Circuit have construed Section 401’s plain

language to hold that a State may not engage in a

bilateral scheme with requestors to circumvent

Section 401’s one-year deadline. On the other side of

the split, the Fourth Circuit and the Ninth Circuit

have permitted such schemes to evade Section 401’s

time limit where the State has not memorialized the

scheme in a written agreement or directive to the

requestor.

In Hoopa Valley, the D.C. Circuit considered

whether California and Oregon waived their Section

401 certification authority where those States

“defer[red] review and agree[d] with a licensee to

treat repeatedly withdrawn and resubmitted water

quality certification requests as new requests.” 913

F.3d at 1100–01. Specifically, the States engaged the

licensee for years in a withdraw-and-resubmit

arrangement before eventually entering into a formal,

written agreement to continue to delay the States’

water quality certification review beyond Section

401’s one-year deadline. Id. at 1101. The Court held

that this “coordinated withdrawal-and-resubmission

scheme” was a legally ineffective “attempt to

circumvent FERC’s regulatory authority of whether

12

and when to issue a federal license.” Id. at 1103.

Because Section 401 provides States with one year to

act on any “request for certification,” 33 U.S.C.

§ 1341(a)(1), and because the licensee was not

withdrawing its request in order to submit a wholly

new request—but was instead merely submitting the

very same certification request the State had before it

the entire year before—the Court held that the

arrangement constituted a waiver of the States’

certification authority under Section 401, Hoopa

Valley, 913 F.3d at 1104–05. Any other result would

defy Section 401’s clear one-year deadline and allow

States to “indefinitely delay federal licensing

proceedings,”

thus

“undermin[ing]

FERC’s

jurisdiction to regulate such matters.” Id. at 1104.

The Second Circuit has similarly held that States’

efforts to circumvent Section 401’s one-year time limit

through bilateral schemes are legally ineffective. In

New York State Department of Environmental

Conservation v. FERC (“New York Dep’t II”), 991 F.3d

439 (2d Cir. 2021), the Court considered an agreement

between the State and a Section 401 applicant that

had the “effect of extending the deadline for the

[State] to issue or deny water quality certification by

36 days.” Id. at 443. Reviewing Section 401’s text and

legislative history, the Second Circuit explained that

“Congress could not have intended to permit the

arrangement,” which arrangement “introduce[d] the

uncertainty the one-year limitation period was

intended to eliminate.” Id. at 450. Congress adopted

the one-year deadline to “protect[ ] the overall federal

13

licensing regime,” such that the deadline may not be

manipulated by States or applicants in order to buy

the State more time to review a water quality

certification application. Id. at 449–50; see also N.Y.

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

450, 455 (2d Cir. 2018) (“New York Dep’t I”) (a State

may not defer the start date of its review process until

a request is, in the State’s discretion, “complete,” as

that would allow States to indefinitely evade Section

401’s one-year deadline).

Although both Hoopa Valley and New York

Department II (eventually) involved formal

agreements between the State and the applicant to

extend the State’s review period beyond Section 401’s

time limit, neither the D.C. Circuit nor the Second

Circuit grounded their reasoning on the existence of a

formal agreement or directive. Rather, in Hoopa

Valley, the D.C. Circuit considered a decades-long

scheme consisting of both informal and formal

withdraw-and-submit arrangements, and interpreted

the plain text of Section 401 to prohibit States from

devising any “arrangement[s]” that “circumvent a

congressionally granted authority over the licensing,

conditioning, and developing of a hydropower

project.” 913 F.3d at 1104–05. Similarly, in New

York Department II, the Second Circuit invalidated

any “arrangement” that would “introduce[ ] the

uncertainty [Section 401’s] one-year limitation period

was intended to eliminate.” 991 F.3d at 449.

14

The Ninth and Fourth Circuits, on the other

hand, have permitted bilateral schemes to extend

Section 401’s one-year review period, narrowing any

prohibition to written agreements or directives.

In the Ninth Circuit decision below, the Court

considered a situation where the State obviously

mandated a withdraw-and-resubmit scheme by

setting up a state regulatory regime that would take

more than one year to navigate and then requiring

requestors to withdraw and resubmit their Section

401 requests in not-so-subtle correspondence. See

App.10a–18a. The case below involved three different

requestors, but the fact pattern for each was the same

in all material respects: immediately prior to Section

401’s one-year deadline, the State strongly urged the

petitioners to withdraw and resubmit their

applications to buy the State more time. For instance,

petitioner Merced Irrigation District applied to FERC

for new licenses for two hydropower projects and, in

accordance with the CWA, filed a request with the

State for water quality certifications on May 20 and

May 21, 2014. App.15a–16a. On April 21, 2015, one

month before the Section 401 deadline would expire,

the State emailed Merced:

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 . . . and simultaneously resubmit an

15

application for water quality certification prior

to May 13, 2015.

App.16a (first alteration in original). Petitioner Yuba

County Water Agency received a similar email,

shortly before the review period for its Section 401

application was set to end:

[Yuba’s] water quality certification action date

for the Yuba River Development Project (FERC

No. 2246) is August 24, 2018.

A final

[California Environmental Quality Act]

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.

App.14a.

The Ninth Circuit held this obvious withdrawand-resubmit scheme was legally effective in evading

Section 401’s one-year deadline. Although the Court

ostensibly based its decision on a purported lack of

evidence showing that the State itself prompted

applicants to withdraw their applications, App.22a,

the undisputed evidence demonstrated a wellestablished practice of instructing Section 401

applicants to withdraw and resubmit their requests

for water quality certification. See App.22a. The

16

Ninth Circuit itself acknowledged that the California

Water Resources Control Board codified this practice

in its regulations. See App.27a–28a. Thus, the Ninth

Circuit effectively requires that States issue some

formal

withdraw-and-resubmit

directive

to

certification applicants before running afoul of

Section 401. App.22a–30a. This decision is starkly

opposed to the D.C. Circuit’s ruling in Hoopa Valley

that “a full year is the absolute maximum” for a

State’s Section 401 certification review. 913 F.3d at

1104. It also renders any prohibition on bilateral

schemes to evade Section 401’s one-year rule an

effective nullity in the Ninth Circuit, given that

applicants have no choice but to comply with a State’s

not-so-subtle “suggestion” to withdraw and resubmit

a Section 401 request, as they cannot complete the

federal licensing process without obtaining a water

quality certification (or a waiver) from the State.

The Fourth Circuit has taken a similar approach

to the Ninth Circuit, rendering any prohibition on the

withdraw-and-resubmit scheme a nullity in that

Circuit as well. In North Carolina Department of

Environmental Quality v. FERC (“NCDEQ”), 3 F.4th

655 (4th Cir. 2021), the Fourth Circuit blessed a state

agency’s effort to extend its time to act on a water

quality certification application through a withdrawand-resubmit scheme.

After the Section 401

applicant in that case had already once refiled its

certification application, the state agency informed

the applicant that it would be unable to complete the

certification process within one year, and the

17

applicant thereafter withdrew and resubmitted the

very same application at the State’s not-so-subtle

suggestion. Id. at 662–63. The Fourth Circuit

determined that the State’s actions were effective in

extending Section 401’s one-year deadline because, in

the Court’s view, the State “merely answered

questions and reminded [the applicant] of the time

frame if it intended to proceed,” with the applicant

itself

“initiat[ing]

the

withdrawals

and

resubmissions.” Id. at 672–73. So while the Fourth

Circuit attempted to square its holding with Hoopa

Valley because the States and applicants in that case

“entered into a written agreement that obligated the

state agencies, year after year, to take no action at all

on the applicant’s § 401 certification request,” id. at

669 (emphasis omitted), that was an implausibly

narrow reading of Hoopa Valley. As noted above, the

key inquiry in Hoopa Valley was whether the State

had taken part in a withdraw-and-resubmit scheme,

not whether that scheme was in a written form.

Hoopa Valley, 913 F.3d at 1105.

II. By Engaging In Bilateral Schemes To Prolong

Water Quality Certification Review, States

Unlawfully Evade Section 401’s One-Year Rule

When a State seeks to provide itself more time

than one year to complete Section 401’s water quality

certification process through a bilateral scheme like

the one at issue here, that is a legally ineffective

attempt to evade Section 401’s bright-line, one-year

rule. Whether there is any formal agreement between

18

the State and applicant or a formal directive from the

State is legally irrelevant. The plain text and design

of the statute, as well as its history, demonstrate as

much. See Bostock v. Clayton County, 140 S. Ct.

1731, 1749 (2020); Br. of Pet’rs at 29–31.

The meaning of Section 401’s text is plain: a State

has “a reasonable period of time (which shall not

exceed one year)” to act on a “request for certification,”

and where the State “fails or refuses to act on a

request” within that year, “the certification

requirements of this subsection shall be waived with

respect to such Federal application.” 33 U.S.C.

§ 1341(a)(1); Hoopa Valley, 913 F.3d at 1103

(explaining that “Section 401’s text is clear”). “[T]he

plain language of Section 401 outlines a bright-line

rule” that “the timeline for a state’s action regarding

a request for certification ‘shall not exceed one year’

after ‘receipt of such request.’” New York Dep’t II, 991

F.3d at 447 (citation omitted). The “temporal element

imposed by the statute is ‘within a reasonable period

of time,’ followed by the conditional parenthetical,

‘(which shall not exceed one year),’” which language

indicates that waiver may be found “prior to the

passage of a full year.” Hoopa Valley, 913 F.3d at

1103–04 (quoting 33 U.S.C. § 1341(a)(1)). And, when

given its ordinary meaning, the term “refuse” means

“[t]o decline to do something,” or “to express or show

determination not to do something.” Refuse, Oxford

19

English Dictionary.4 When a State establishes any

practice that seeks to give the State more than one

year to decide on a request for water quality

certification, the State violates Section 401’s clear

one-year deadline.

Any other reading of Section 401 would lead to

“absurd results.” See Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564, 575 (1982). If a State can mandate

that Section 401 applicants withdraw and resubmit

their applications as the one-year deadline

approaches, it can also use Section 401 “to hold

federal licensing hostage.” Hoopa Valley, 913 F.3d at

1104. That is true where States and applicants enter

formal agreements to delay federal licensing

proceedings, id. at 1101; New York Dep’t II, 991 F.3d

at 443, and where the State not-so-subtly instructs or

urges applicants to withdraw and resubmit their

Section 401 applications prior to the State’s one-year

deadline, like in the communications here, App.10a–

18a; NCDEQ, 3 F.4th at 672–73. The statutory

language nowhere suggests that a State’s efforts to

evade Section 401’s express deadline are permissible

so long as the State strategically evades formalizing

the arrangement or directive in writing.

Section 401’s legislative history, to the extent this

Court considers that relevant here, see Delaware v.

Pennsylvania, 598 U.S. ___, 2023 WL 2247231, at *12

Available at https://www.oed.com/view/Entry/161141

?rskey=ks6g88&result=3&isAdvanced=false#eid.

4

20

(2023), is in accord. Congress enacted Section 401’s

one-year deadline to prevent a State’s “dalliance or

unreasonable delay.” 115 Cong. Rec. 9,264 (Apr. 16,

1969) (statement of Rep. Edmondson). Congress

viewed that clear time limit as necessary “to insure

that sheer inactivity by the State . . . will not frustrate

the federal application.” H.R. Rep. No. 91-940, at 55

(Mar. 24, 1970) (Conf. Rep.), reprinted in 1970

U.S.C.C.A.N. 2712, 2741. In “imposing a one-year

time limit on States to ‘act,’ Congress plainly intended

to limit the amount of time that a State could delay a

federal licensing proceeding without making a

decision on the certification request,” Alcoa Power,

643 F.3d at 972, such that any state-sanctioned

circumvention of Section 401’s one-year deadline is

unlawful, regardless of whether the State has entered

into any formal agreement to delay federal licensing

proceedings. The scheme that the Fourth Circuit and

the Ninth Circuit have blessed thus subverts

Congress’s core design that a State’s water rights

authority under the CWA not be allowed to unduly

delay a federal licensing regime.

III. States’ Efforts To Undermine Section 401’s OneYear Deadline Harm The Hydropower Industry

And The Nation’s Supply Of Electric Energy

When States circumvent Section 401’s one-year

deadline, the hydropower industry suffers, as do the

Nation’s supply of clean, emissions-free energy and

electric consumers who rely on this affordable and

reliable form of baseload renewable energy.

21

Hydropower provides the “oldest, most abundant,

and most efficient renewable energy source in the

United States.” Andrew G. Lawson, Streamlining the

Hydropower Licensing Process: What’s up with the

Dam Licensing, 52 Suffolk U. L. Rev. 109, 111 (2019).

With a conversion rate of 90%, hydropower is

significantly more efficient—not to mention more

affordable—than other energy sources. Id. at 112;

U.S. Dep’t of Energy, Off. of Energy Efficiency &

Renewable

Energy,

Hydropower

Basics.5

Hydropower projects account for roughly 7% of the

total national electric production, and hydropower

accounts for over one-third of the nation’s renewable

energy. U.S. Energy Info. Admin., Frequently Asked

Questions, What Is U.S. Electricity Generation by

Source.6

In addition to electric production,

hydropower offers significant benefits for the Nation’s

electric grid: because hydropower plants can reliably

generate power to the grid immediately, these

facilities are vital to ensuring the country’s power

system can withstand severe disturbances such as

hurricanes and other extreme events. U.S. Dep’t of

Energy, Hydropower’s Contributions to Grid

Resilience at v (Oct. 2021).7 And the importance of

Available

/hydropower-basics.

5

at

https://www.energy.gov/eere/water

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

427&t=3.

6

Available at https://www.pnnl.gov/main/publications

/external/technical_reports/PNNL-30554.pdf.

7

22

hydropower is only likely to increase as the United

States works to address climate change impacts and

reduce its dependence on fossil fuels. The U.S.

Department of Energy has estimated that

hydropower capacity in the United States could grow

50% by 2050, from 101 gigawatts to nearly 150

gigawatts. U.S. Dep’t of Energy, Hydropower Vision:

A New Chapter for America’s 1st Renewable

Electricity Source 373 (2016).8

Hydropower projects also provide significant

benefits for the communities in which they are

located. They contribute to municipal and industrial

water supply, navigation, flood control, irrigation,

recreation, and fish and wildlife habitat. U.S. Dep’t

of Energy, Off. of Energy Efficiency & Renewable

Energy, Benefits of Hydropower.9 The hydropower

industry further benefits local economies by

employing tens of thousands of people, with the

hydropower workforce estimated to grow to up to

120,000 jobs by 2030 and up to 158,000 jobs by 2050.

U.S. Dep’t of Energy, Nat’l Renewable Energy Lab.,

8 Available at http://energy.gov/sites/prod/files/2016/10/f33

/Hydropower-Vision-10262016_0.pdf.

Available at https://www.energy.gov/eere/water/benefitshydropower.

9

23

Workforce Development for U.S. Hydropower: Key

Trends and Findings at 6, 17 (July 2019).10

State abuse of the Section 401 certification process

is a frequent source of delay in hydropower licensing

and relicensing, contributing to the underutilization

of this important renewable energy source. As a

former FERC Chairman has noted, “the [S]ection 401

certification process is often very time-consuming,

despite the intent of the CWA that a State should act

on a certification request in a year or less.” S. Hrg.

105-381, 105th Cong. 55 (1997) (statement of James

J. Hoecker, FERC Chairman). A FERC staff report

released in 2017 indicates that States flout Section

401’s one-year deadline frequently, such that a

Section 401 water quality certification takes an

average of 411 days, see Staff of Fed. Energy

Regulatory Comm’n, AD13-9-000, Report on the Pilot

Two-Year Hydroelectric Licensing Process for NonPowered Dams and Closed-Loop Pumped Storage

Projects and Recommendations 41–42 (2017),11 with

many States taking a decade or more to complete

their certifications, Hoopa Valley, 913 F.3d at 1104.

The chronic delay caused by States’ circumvention

of Section 401’s one-year deadline—including through

the withdraw-and-resubmit tactics at issue in this

Available

/74313.pdf.

10

at

https://www.nrel.gov/docs/fy19osti

11 Available at https://www.ferc.gov/sites/default/files/2020-

05/final-2-year-process.pdf.

24

case—undermines the national interest in preserving

and promoting this vital and irreplaceable renewable

energy resource. Regulatory clarity is critical for

hydropower development, as uncertainty in licensing

processes can “adversely affect development costs,

timelines, and financing options.”

Hydropower

Vision, supra, at 51. Hydropower projects generally

require numerous permits and reviews at the federal,

state, and local levels, which process in turn requires

precise planning and scheduling to ensure a project

stays on track for regulatory permitting, financing,

and ultimate development. For new projects, any

unanticipated delays can sound a death knell. See

Alcoa, 643 F.3d at 970 (“[S]ignificant capital

investments cannot be made in hydro power projects

without the certainty and security of a multi-decade

license.”). And for existing hydropower facilities

seeking relicensing, delays in the certification process

can prevent these facilities from implementing

proposed environmental improvements.

When States evade Section 401’s one-year

deadline, they threaten our Nation’s efforts to reduce

dependence on carbon-based sources of energy.

Hydropower is critical to sustaining a decarbonized

energy grid, see James H. Williams et al., Energy &

Env’tl Economics, Inc. et al., Pathways to Deep

Decarbonization in the United States, US 2050

Report, Volume 1: Technical Report 17–20 (2014),12

Available at https://biotech.law.lsu.edu/blog/US-DeepDecarbonization-Report.pdf.

12

25

and “additional hydropower development above

current levels that meets modern environmental

requirements must be a component of any proposal to

reduce the United States’ dependence on carbon over

the long term,” Charles R. Sensiba, Michael A.

Swiger, & Sharon L. White, Deep Decarbonization

and Hydropower, 48 Env’tl L. Rep. 10309, 10310

(2018).13 But that development is only possible if

States are held to the clear terms of Section 401, and

thus are prohibited from taking the federal

hydropower licensing process hostage.

In contrast, when States comply with Section 401’s

terms, hydropower projects can move through the

licensing and relicensing process more efficiently,

which means more jobs, less carbon dependence, and

a more reliable and resilient electric grid. To realize

the immense benefits associated with hydropower, it

is critical that this Court invalidate the withdrawand-resubmit practice sanctioned by the Ninth

Circuit and enforce Section 401’s bright-line time

limit for State water quality certification review.

13 Available at https://www.vnf.com/webfiles/48.10309.pdf.

26

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

CHARLES R. SENSIBA

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street, NW

Suite 1000

Washington, DC 20004

MARCH 2023

MISHA TSEYTLIN

Counsel of Record

KAITLIN L. O’DONNELL

KEVIN M. LEROY

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae