Respondents 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.,

Respondents.

?

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

NON-GOVERNMENTAL RESPONDENTS’

BRIEF IN OPPOSITION

SCOTT L. NELSON

Counsel of Record

MICHAEL MIGIEL-SCHWARTZ

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

JULIE GANTENBEIN

WATER AND POWER

LAW GROUP PC

2140 Shattuck Avenue

Suite 801

Berkeley, CA 94704

(510) 296-5588

ANDREW MCALEER HAWLEY

WESTERN ENVIRONMENTAL

LAW CENTER

1037 NE 65th Street, No. 343

Seattle, WA 98115

(206) 487-7250

SANJAY NARAYAN

SIERRA CLUB

2101 Webster Street

Suite 1300

Oakland, CA 94612

(415) 977-5769

(for Sierra Club only)

Attorneys for Non-Governmental Respondents

April 2023

i

QUESTION PRESENTED

In this case, the United States Court of Appeals for

the Ninth Circuit set aside orders of the Federal Energy Regulatory Commission (FERC) because they

were not supported by substantial evidence. FERC’s

orders had concluded that the State of California

waived its authority under the Clean Water Act, 33

U.S.C. § 1341(a)(1), to issue water quality certifications for the relicensing of four major hydropower projects by “fail[ing] or refus[ing] to act” by the statutory

deadline. The Ninth Circuit found that the record

demonstrated that California was prepared to take

timely action by denying the certification requests

without prejudice, but that the applicants chose to

withdraw their requests to avoid denials. The question presented is:

Whether the court of appeals correctly found that

FERC’s orders concluding that California waived its

authority under § 1341(a)(1) were not supported by

substantial evidence.

ii

RULE 29.6 STATEMENT

The non-governmental respondents joining in this

brief are the South Yuba River Citizens League, California Sportfishing Protection Alliance, Friends of the

River, and the Sierra Club (including its Mother Lode

and Tehipite Chapters). All are nonprofit, non-stock

corporations that do not offer shares to the public and

have no parent corporations, and no publicly held corporation holds an ownership interest in any of them.

iii

TABLE OF CONTENTS

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

RULE 29.6 STATEMENT .......................................... ii

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

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

STATEMENT .............................................................. 4

A. Legal Background ............................................ 4

B. Facts and Decision Below ................................ 7

REASONS FOR DENYING THE WRIT .................. 12

I.

There is no conflict among the circuits. ............ 12

A. The decision below accords with D.C. Circuit

precedent. ....................................................... 13

B. Second Circuit precedent also supports the

decision below. ................................................ 17

II. The court of appeals’ decision is correct. ........... 19

III. Accepting petitioners’ arguments would

undermine the certification process by

allowing applicants to game the system. .......... 22

IV. A number of factors make review of the

question posed by the petition unnecessary

and inappropriate at this time. ......................... 24

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

iv

TABLE OF AUTHORITIES

Cases

Page(s)

In re Clean Water Act Rulemaking,

60 F.4th 583 (9th Cir. 2023) ................................ 26

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir.),

cert. denied sub nom.

Cal. Trout v. Hoopa Valley Tribe,

140 S. Ct. 650 (2019) ............... 2, 4, 6, 9, 10, 13–17

22–25, 27

N.C. Dep’t of Envtl. Quality v. FERC,

3 F.4th 655 (4th Cir. 2021) .................. 2, 13, 16, 17

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

991 F.3d 439 (2d Cir. 2021) ....................... 3, 17–19

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

884 F.3d 450 (2d Cir. 2018) ....................... 3, 17–19

Turlock Irrig. Dist. v. FERC,

36 F.4th 1179 (D.C. Cir. 2022),

pet. for cert. pending, No. 22-616

(U.S. filed Jan. 4, 2023) ......... 2, 3, 4, 15–17, 22, 25

Village of Morrisville, Vt.,

174 FERC ¶ 61,141 (2021) .................................... 6

Statutes and Rules

16 U.S.C. § 825l(b) ................................................ 1, 10

33 U.S.C. § 1341 .................................... 1, 5, 16, 22, 26

33 U.S.C. § 1341(a)(1) ..................... 1, 3–5, 7, 9, 15–18

20, 25, 27

33 U.S.C. § 1341(d) ..................................................... 5

40 C.F.R. § 121.6 ................................................. 25–26

v

40 C.F.R. § 121.6(e) ................................................... 26

Cal. Pub. Res. Code § 21083.7(a) ................................ 8

Cal. Water Code § 13160(b)(2).................................. 24

S. Ct. R. 10 ................................................................ 19

Other

Black’s Law Dictionary (11th ed. 2019) ................... 20

EPA, Clean Water Act Section 401 Water Quality

Certification Improvement Rule, 87 Fed. Reg.

35,318 (proposed June 9, 2022) ........................... 26

Turlock Irrig. Dist. v. FERC, No. 22-616, Br. for Fed.

Resp. in Opp. (U.S. filed Mar. 8, 2023) ............... 17

INTRODUCTION

The petition in this case asks this Court to review

an intrinsically factbound decision: The Ninth Circuit

found that there was no substantial evidence to support rulings of the Federal Energy Regulatory Commission (FERC) that the State of California had

waived its right to certify water-quality compliance of

four hydropower projects under the Clean Water Act.

As to each of the projects, FERC erroneously held that

California coordinated with the license applicants to

delay certification and thus “fail[ed] or refuse[d] to act

on [the] request[s] for certification” within one year of

the certification requests, as required by the Act, 33

U.S.C. § 1341(a)(1). Carefully reviewing the factual

record of each proceeding, the court of appeals determined that undisputed evidence established that the

state made clear that it was prepared to act on each of

the requests for certification within the one-year deadline—by denying them without prejudice because the

applicants had not provided analyses of the projects’

environmental impacts. The applicants then chose to

withdraw their requests prior to the deadline and resubmit them, rather than have the state deny them.

The court of appeals held that, under FERC’s stated

view of § 1341(a)(1), the state’s “acquiesce[nce]” in the

applicants’ “own decisions to withdraw and resubmit

their applications rather than have them denied” was

not a coordinated refusal to act on the requests and

did not waive certification. Pet. App. 22a. The court,

therefore, vacated the orders and remanded the matters to the agency. The record-based determination

that, even applying FERC’s own view of § 1341,

FERC’s orders are unsustainable under the Federal

Power Act’s substantial evidence standard, 16 U.S.C.

§ 825l(b), does not merit review by this Court.

2

The applicants’ petition for certiorari rests on the

false assertion that the court of appeals’ decision implicates a conflict among the circuits. No court of appeals, however, has held that a state waives its Clean

Water Act certification authority by allowing an applicant to withdraw and resubmit a certification request

when, as in this case, the record shows the state is

fully prepared to timely act on an inadequate request

by denying it without prejudice if the applicant does

not withdraw it. The D.C. Circuit’s decision in Hoopa

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

on which petitioners principally rely, holds that a

state waives certification if it expressly agrees with an

applicant not to act on a certification request. The decision below does not contest that proposition.

As the Fourth Circuit has recognized, “Hoopa Valley is a very narrow decision,” finding a waiver where

state agencies and a license applicant “entered into a

written agreement that obligated the state agencies,

year after year, to take no action at all on [a] certification request”; Hoopa Valley does not apply where an

applicant withdraws and resubmits a request that the

state would otherwise deny. N.C. Dep’t of Envtl. Quality v. FERC, 3 F.4th 655, 669 (4th Cir. 2021) (NCDEQ)

(emphasis in original). Petitioners baldly assert that

the Fourth Circuit’s characterization of Hoopa Valley

“conflicts with … the D.C. Circuit’s view of its own

precedent.” Pet. 26. In fact, the D.C. Circuit has explicitly stated that “[t]he Fourth Circuit accurately described Hoopa Valley” and has held that, absent the

circumstances described by the Fourth Circuit, Hoopa

Valley does not compel a finding of waiver. Turlock Irrig. Dist. v. FERC, 36 F.4th 1179, 1183 (D.C. Cir.

2022).

3

Petitioners’ assertion that the decision below conflicts with rulings of the Second Circuit is equally off

the mark. The Second Circuit has held that the plain

language of the Clean Water Act precludes states from

altering the one-year deadline triggered by “receipt” of

a request for certification, 33 U.S.C. § 1341(a)(1), by

counting from a different starting point. See N.Y. State

Dep’t of Envtl. Conservation v. FERC, 884 F.3d 450,

456 (2d Cir. 2018) (NYDEC I); N.Y. State Dep’t of Envtl. Conservation v. FERC, 991 F.3d 439, 447–48 (2d

Cir. 2021) (NYDEC II). In this case, there was no manipulation of the one-year deadline: The applicants

withdrew their requests before the deadline in the face

of California’s stated intention to act by that deadline.

The Second Circuit’s decisions explicitly acknowledge

that such circumstances do not amount to a waiver.

See NYDEC I, 884 F.3d at 456; NYDEC II, 991 F.3d at

450 n.11.

Absent a conflict, there is no reason for review of

the decision below. The court of appeals correctly held

that a state that has informed an applicant that it is

prepared to act on its certification request by the deadline, and that does not do so only because the applicant chooses to withdraw the request, has not failed

or refused to act on the certification request. A contrary approach would reward “gamesmanship,” Turlock, 36 F.4th at 162, by finding waiver by the state

where an applicant acted to prevent a timely denial of

an inadequate request by withdrawing it just before

the deadline.

Moreover, there are abundant other reasons to

deny review. The issue raised is unlikely to recur because of changes in California law that increase the

state’s discretion to issue merits determinations on

certification even when, as in this case, applicants

4

have failed to complete all necessary environmental

analyses within a year of submitting their waiver requests. In addition, since Hoopa Valley, when an applicant has failed to provide the information necessary

to support a certification request, California has routinely acted on the request by denying it without prejudice rather than allowing the applicant to withdraw

the request. As the D.C. Circuit held in Turlock, a

state that denies a request without prejudice has, under the plain meaning of § 1341(a)(1), “act[ed] on a request.” 36 F.4th at 1183–84. Further, ongoing Environmental Protection Agency (EPA) rulemaking proceedings are likely to lend greater precision to determination of the circumstances in which a state’s actions with respect to a request for certification amount

to waiver of certification authority. Although the outcome of the regulatory process will not control this

case or others involving requests made before the issuance of the regulations, the regulations will apply

prospectively and minimize still further the importance of the resolution of this case.

STATEMENT

A. Legal Background

The Clean Water Act’s embrace of cooperative federalism gives states a significant role in the federal licensing of facilities that may result in discharges into

navigable waters. Under the Act, an applicant for a

license or permit from a federal agency to construct or

operate such a facility must provide the agency a certification from the state where the discharge will originate that the discharge will comply with various provisions of the Act, including those that incorporate

state water-quality standards. 33 U.S.C. § 1341(a)(1).

The state’s certification is required to specify

5

conditions necessary to assure compliance with effluent limitations and other requirements of the Act, as

well as with “any other appropriate requirement of

State law set forth in such certification,” which “shall

become a condition on any Federal license or permit

subject to the provisions of this section.” Id. § 1341(d).

If a project will not comply with applicable clean-water requirements even with conditions, the state must

deny certification and the project may not be licensed.

Id. § 1341(a)(1).

Hydroelectric power projects that FERC licenses

and relicenses—for lengthy terms of 30 to 50 years—

typically are subject to the certification requirements

of § 1341 because they result in discharges into navigable waters. State certification for the relicensing of

hydropower projects originally licensed decades ago,

before advances in water-quality protections offered

under the Clean Water Act and the state laws that

work hand-in-hand with it, often requires significant

new conditions to protect water quality and assure the

availability of clean water for fish and wildlife habitat,

recreation, and drinking water.

Section 1341(a)(1) provides that if a state “fails or

refuses to act on a request for certification, within a

reasonable period of time (which shall not exceed one

year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application.” Nothing in the provision, however, requires that a state act on a request

that has been withdrawn by the applicant. As a result,

FERC for many years took the view that, regardless of

surrounding circumstances, an applicant’s withdrawal and resubmission of a certification request restarted the one-year period for certification as long as

the withdrawal took place within a year of the state’s

6

receipt of the request. See Pet. App. 8a–9a (citing

FERC orders from 1994–2018).

In 2019, the D.C. Circuit held in Hoopa Valley that

a formal agreement between states and an applicant

obligating the states to take no action on a certification request and the applicant to continually withdraw and resubmit the request to extend the deadline

for action indefinitely was a failure or refusal by the

states to take action and waived the certification requirement. 913 F.3d at 1104–05. The court described

such a “coordinated withdrawal-and-resubmission

scheme” as an attempt by both the states and the license applicant to circumvent FERC’s authority. Id.

at 1103. The court expressly stated that the case presented only “the set of facts in which a licensee entered

a written agreement with the reviewing states to delay water quality certification,” id. at 1104, and it decided only the question whether a state waived its certification authority when an applicant withdrew and

resubmitted its certification request “pursuant to an

agreement between the state and applicant,” id. at

1103.

Nonetheless, FERC subsequently extended Hoopa

Valley to find waiver in cases where, although a state

and an applicant had not entered into a formal agreement to delay certification, FERC found evidence of an

“informal, coordinated schem[e]” to put off certification through repeated withdrawals and resubmissions. Pet. App. 20a (citing FERC orders). Under

FERC’s standard, however, a state does not waive authority whenever an applicant withdraws and resubmits a certification request to restart the one-year

clock. Rather, where the state’s course of conduct does

not have the “motivation to restart the one-year

clock,” and the applicant “acted unilaterally and in its

7

own interest” in withdrawing and resubmitting its request, the state has not failed or refused to take action, and there is no waiver. Village of Morrisville, Vt.,

174 FERC ¶ 61,141, at P12 (2021), cited in Pet. App.

21a. Under FERC’s view, “the motivations of the licensee and especially of the certifying agencies” are critical to “whether the states waived their … authority”

by engaging in “deliberate idleness.” Id. at P10, P12.

B. Facts and Decision Below

The court of appeals’ opinion describes accurately

and at length the four relicensing proceedings and certification requests that give rise to this case. Pet. App.

9a–18a. Each involves a California hydroelectric project originally licensed in the 1960s for a term expiring

in 2013 or, in one instance, 2014. The current licensees for each project are public bodies that are political

subdivisions of the state: two irrigation districts and a

county water agency. In each case, the licensee applied to FERC for relicensing and, during the pendency of the relicensing proceedings, has continued to

operate its project(s) under a series of one-year interim licenses that lack the water-quality conditions

that will inevitably be imposed when the projects are

certified by the relevant California agency, the State

Water Resources Control Board, under § 1341(a)(1).1

The applicants submitted their initial requests for

certification to the state at various times between

2012 and 2017. California law requires that environmental impact reports under the California Environmental Quality Act (CEQA) be prepared and provided

to the State Water Resources Control Board in

––––––––––––––––––––––––

1 Among other things, the projects’ effects on native fisheries

require numerous conditions on relicensing to improve instream

habitat.

8

connection with certification requests, and, at the

time of these requests, further required the Board to

deny any certification request that was not supported

by such a report. When an applicant seeking approval

of a project requiring environmental review under

CEQA is a public agency, the applicant is designated

as the “lead agency” responsible to perform the environmental impact report. See Pet. App. 6a–7a. In each

case, the Board informed the public-agency applicants

that they were responsible for preparing the required

CEQA evaluation and that failure to submit it would

result in denial of their certification request, without

prejudice to refiling.2

None of the applicants prepared the required

CEQA evaluations, despite the state’s repeated reminders that certification could not be granted without them.3 Instead, they repeatedly chose to withdraw

––––––––––––––––––––––––

For one of the two Merced Irrigation District projects,

Merced Falls, a private entity was the licensee when certification

was first requested, and the Board was the lead agency under

CEQA until the license was transferred to the Merced Irrigation

District, but neither FERC’s orders nor the petition suggest that

that distinction affects the issues here. See Pet. App. 26a n.14.

2

3 Petitioners suggest that their failure to do so is attributable

to the state because an applicant cannot initiate the CEQA review process until FERC completes its own final environmental

impact statement (FEIS) under the National Environmental Policy Act for the projects. Pet. 10. That assertion is legally unfounded. See Cal. Pub. Res. Code § 21083.7(a) (applicant should

use the federal FEIS when “possible”). It also flies in the face of

the facts of this case. For the Yuba-Bear River project, FERC’s

FEIS was completed in December 2014, Pet. App. 35a, but the

Nevada Irrigation District had not yet even begun the CEQA process five years later. Id. 11a. Similarly, FERC issued the FEIS

for the two Merced projects in December 2015, id. 82a, but the

responsible agency, the Merced Irrigation District, had still not

commenced the CEQA process four years later. Id. 17a.

9

and resubmit their certification requests to drag out

the process while the projects continued to operate under interim licenses without the additional requirements that would be imposed if the projects were certified and relicensed. In each case, the Board communicated its readiness to comply with the state-law requirement that it deny each successive, inadequate request for certification without prejudice within a year

of its submission if it were not withdrawn by the applicant first. Although the Board predicted the applicants would choose withdrawal and resubmission over

denial without prejudice, and asked the applicants to

do so in a timely manner, it made clear in each case

that it would deny the certification requests if they

were not withdrawn based on the applicants’ failure

to provide the required environmental evaluation.

After the D.C. Circuit issued its opinion in Hoopa

Valley in January 2019, the Board issued decisions

denying without prejudice the then-pending request

for certification for each of the projects. By that time,

each of the applicants had already dragged out the

process for years by not completing the required

CEQA analyses, and each had benefited from the ability to continue operating the projects in the meantime

without additional conditions aimed at water-quality

protection. Sensing the opportunity to free themselves

completely from the prospect of conditional certification, the applicants petitioned FERC for declaratory

orders determining that California had waived certification under § 1341(a)(1) by engaging in a coordinated

scheme with them to delay certification beyond the

one-year deadline.

Purporting to apply the standard announced in its

previous decisions extending Hoopa Valley to informal

coordination schemes—but not to acquiescence in an

10

applicants’ own choice to withdraw and resubmit a

certification request—FERC ruled that the state had

waived certification with respect to each project. The

substantively similar orders relied heavily on the

state’s expectation that it would be in the applicants’

interest to refile and on communications from the

state requesting that the applicants submit withdrawals, if that was indeed their preferred course of action,

before the Board was forced to deny the requests.

FERC’s orders also wrongly stated that the state had

failed to dispute that the Board “had all of the information it needed to act,” Pet. App. 45a, 67a, when in

fact it was undisputed that the applicants had failed

to provide the necessary CEQA environmental impact

reports. The orders also ignored that the state had repeatedly made clear its readiness to act on the requests by denying them without prejudice because of

the applicants’ recalcitrance. Finally, FERC’s orders

failed to address the point—deemed decisive in prior

orders—that the applicants had the motive to delay

and benefited from the delay.

The Board, and the environmental organizations

that had intervened to support it in the FERC proceedings, filed petitions for review of each order in the

Ninth Circuit. The court of appeals vacated each of

FERC’s orders on the ground that they were unsupported by substantial evidence—the applicable standard of review under the Federal Power Act, 16 U.S.C.

§ 825l(b). See Pet. App. 4a.

The court of appeals’ decision did not question the

correctness of either Hoopa Valley or FERC’s extension of that decision to informal coordinated schemes

to delay certification. Instead, assuming the correctness of FERC’s legal standard, the court held that the

record did not support FERC’s conclusion that the

11

proceedings involved a coordinated delay scheme rather than the state’s acquiescence in the applicants’

own decision to withdraw and resubmit their requests—which FERC agreed would not constitute a

waiver. Thoroughly examining the record of each proceeding, the court found that the state had not “sought

a withdrawal-and-resubmission for its own purposes”;

rather, “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.” Pet. App. 21a–22a.

The court pointed out that FERC had wrongly

treated the Board’s statements about what it predicted the applicants would do as evidence of the

Board’s own intentions; that FERC had overlooked the

Board’s repeated statements that it was prepared to

deny the applications without prejudice if they were

not withdrawn; that FERC had mischaracterized California regulations as “ ‘codify[ing] [the] practice’ of

withdrawal-and-resubmission,” Pet. App. 27a, when

they in fact prescribed denial of certification without

prejudice when an applicant failed to comply with

CEQA, unless the applicant withdrew its request; and

that FERC had erroneously stated that the Board did

not dispute that the applicants had supplied all information needed to act on their requests, when it was

undisputed that the requests could not be granted under then-applicable law because of the applicants’ failure to provide CEQA environmental impact reports.

See id. 23a–29a. And critically, the court pointed out

that FERC had identified no basis for concluding that

delays that benefited the applicants were in the state’s

interest. Rather, “the State Board, unlike the Project

Applicants, would have had an interest in moving

along the environmental-review process.” Id. 26a. In

12

sum, “nothing in the record shows that the State

Board encouraged” the applicants to choose withdrawal-and-resubmission over denial of certification

by the Board. Id. 29a.

For these reasons, the court vacated FERC’s orders

and remanded to the agency. That action leaves the

applicants free to continue operating the projects under interim permits while pursuing relicensing, subject to state certification and any conditions that may

be imposed as a result to ensure that they will not continue operating those projects for decades to come in a

manner that adversely affects water quality. For each

project, the state has now granted certification, subject to numerous water-quality conditions, and the

certification orders are subject to ongoing administrative and/or state-court proceedings. Meanwhile, FERC

must in any event complete Endangered Species Act

consultations with other federal agencies before the

projects can be relicensed.

REASONS FOR DENYING THE WRIT

I.

There is no conflict among the circuits.

Because a factbound court decision that a FERC

waiver determination lacks support in the administrative record obviously does not merit review by this

Court, petitioners assert that this case presents something more: a conflict among the circuits. That assertion is transparently incorrect. No court of appeals has

held that a state waived certification under circumstances comparable to those here, where the record

demonstrates the state was prepared to act on the requests—by denying them without prejudice because of

the applicants’ failure to meet the requirements for

certification under applicable state law—but instead

acquiesced in the applicants’ decisions to withdraw

13

their requests before the expiration of the one-year

deadline. Indeed, petitioners concede that the only

case they cite that involved such facts—the Fourth

Circuit’s decision in NCDEQ, 3 F.4th 655—is “consistent” with the decision below. Pet. 25. Petitioners’

invocation of D.C. and Second Circuit decisions finding waivers under very different factual circumstances does not demonstrate inter-circuit conflict.

A. The decision below accords with D.C.

Circuit precedent.

Petitioners rest their claim of conflict mainly on

the D.C. Circuit’s decision in Hoopa Valley. Their contention that the Ninth Circuit’s decision in this case

conflicts with the law applied by the D.C. Circuit, however, is untenable for multiple reasons.

First, unlike this case, Hoopa Valley did not involve a state that was willing to act on a request for

certification within the one-year deadline but had no

need to do so because of an applicant’s own decision to

withdraw the request. Rather, the relevant states in

Hoopa Valley (California and Oregon) had entered

into a “formal agreement” with the applicant to “defer

the one-year statutory limit for [certification] by annually withdrawing-and-resubmitting the water quality certification requests.” 913 F.3d at 1101. That

agreement “explicitly required abeyance of all state

permitting reviews” unless and until federal funding

for the project was secured. Id. The court emphasized

that the “single issue” it resolved was “whether a state

waives its [certification] 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.” Id. at 308 (emphasis

14

added). The court held that such an agreement constituted a waiver because it reflected the state’s “deliberate and contractual idleness.” Id. at 310. The court

emphasized that it was not addressing the consequences of withdrawal and resubmission of requests

on other facts. See id.

Here, by contrast, California did not enter into an

agreement not to act on any certification request. Rather, in each case, the state explicitly stated that it

was prepared to act within one year of the submission

of each pending request, by denying it without prejudice, unless the applicant preferred to withdraw and

resubmit the request. See Pet. App. 12a, 14a, 16a, 23a,

25a, 26a. As the court of appeals found, the state had

no reason to prefer one or the other of these two “functionally equivalent” courses of action as long as one or

the other occurred before the one-year deadline. Id.

29a n.16. Nor did the state have reasons to delay the

relicensing proceedings. It was the applicants who

were responsible for the failure to carry out the steps

required for the state to grant certification; the applicants who benefited from delay because it allowed

them to continue operating the projects pending relicensing without additional water-quality protections;

and the applicants who preferred to withdraw and resubmit their certification requests rather than have

them denied without prejudice to resubmission. Id.

28a–29a & n.16. Under such circumstances, Hoopa

Valley’s rationale—that the statute aims “to curb a

state’s ‘dalliance or unreasonable delay,’ ” 913 F.3d at

1104 (emphasis in original)—is not implicated.

Second, nothing in the Ninth Circuit’s opinion suggests any disagreement with either the reasoning or

result of Hoopa Valley. The court of appeals described

the circumstances of Hoopa Valley and the holding of

15

the case without criticizing any aspect of the decision’s

analysis. See Pet. App. 9a, 19a–20a. The court further

noted that, following Hoopa Valley, FERC had gone

one step beyond that case’s holding by ruling that

waiver occurs not only where states enter into express

agreements to delay certification, but also where they

are parties to “more informal, coordinated schemes.”

Id. 20a. The court did not disagree even with FERC’s

extension of Hoopa Valley’s holding; rather, it assumed the correctness of the legal standard that

FERC applied. Id. 22a (“We need not decide whether

the coordination standard FERC advances is consistent with the text of [§ 1341(a)(1)].”). The court held

that, even under FERC’s expansive view of Hoopa Valley—under which a “coordinated” withdrawal-and-resubmission scheme constitutes a waiver, but a states’

“acquiesce[nce] in a project applicant’s own decision to

withdraw and refile” does not, id. 21a—there was no

substantial evidence supporting a finding of waiver.

Id. 22a.

Third, the D.C. Circuit’s subsequent decision in

Turlock—which petitioners barely mention, see Pet.

26 n.8, 29—makes clear that there is no conflict between its approach and that of the Ninth and Fourth

Circuits. In Turlock, as in this case, California was

presented with requests for certification for two hydropower projects from applicants that had not carried out their responsibility to prepare an environmental impact evaluation, which at the time was a

state-law prerequisite to the state’s grant of certification. California denied each request in Turlock without prejudice within one year of its submission. The

applicants resubmitted the requests; California again

denied the requests without prejudice within a year,

and the applicants again resubmitted the requests.

16

The applicants then asked FERC to rule that the state

had waived certification, but FERC declined to find a

waiver. On review, the D.C. Circuit held that under

§ 1341(a)(1)’s plain terms, the state’s timely denial of

a request, without prejudice to its resubmission, is not

a failure or refusal to act that constitutes a waiver. 36

F.4th at 1183. That is, Turlock held that there was no

waiver where California took the exact action it was

prepared to take in this case, and where the consequences of the state’s action were functionally identical to what it did in this case.

In reaching its holding in Turlock, the D.C. Circuit

emphasized the limits of its holding in Hoopa Valley.

The court rejected the applicants’ argument that, because the effect of the state’s action in both cases was

to delay certification of the projects, Hoopa Valley required a finding of waiver under the circumstances in

Turlock as well. Id. at 1183–84. In so doing, the court

adopted the Fourth Circuit’s explanation in NCDEQ

of why Hoopa Valley does not require waiver where a

state acquiesces in an applicant’s decision to withdraw

and resubmit its certification request: “The Fourth

Circuit accurately described Hoopa Valley as a case in

which ‘the state agencies and the license applicant entered into a written agreement that obligated the

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

on the applicant’s § [1341] certification request.’ ” Id.

at 1183. The court confirmed the Fourth Circuit’s view

that Hoopa Valley does not control where “[t]hose circumstances are not present.” Id.

Turlock directly contradicts petitioners’ assertion

that the Fourth Circuit’s “understanding of Hoopa

Valley … conflicts with … the D.C. Circuit’s view of its

own precedent.” Pet. 26. Petitioners support that

statement only with a footnote that in turn cites a

17

footnote in Turlock characterizing a FERC order, see

id. 26 n.8, not the D.C. Circuit’s precedent. They completely ignore the explicit endorsement in Turlock’s

text of NCDEQ’s understanding of D.C. Circuit precedent. Turlock leaves no doubt that that same understanding is shared by each of the circuits that have

addressed the scope of Hoopa Valley: the Fourth Circuit in NCDEQ, the D.C. Circuit in Turlock, and the

Ninth Circuit below. See also Turlock Irrig. Dist. v.

FERC, No. 22-616, Br. for Fed. Resp. in Opp., at 18

(U.S. filed Mar. 8, 2023) (noting consistency of Turlock

with the decision below in this case).

B. Second Circuit precedent also supports

the decision below.

Petitioners’ fallback claim that decisions of the

Second Circuit would require a finding of waiver in

this case is likewise groundless. Neither of the two decisions that petitioners cite, NYDEC I and II, holds

that a state that is prepared to act on a certification

request within a year of its submission waives certification if it acquiesces in an applicant’s decision to

withdraw the request and resubmit it, starting the

clock anew. The cited decisions stand instead for the

unremarkable proposition that under the statute’s

plain language—which provides that a state waives

certification if it “fails or refuses to act on a request for

certification, within … one year ... after receipt of such

request,” 33 U.S.C. § 1341(a)(1)—the state cannot

count the one-year period from a date other than the

date on which a request was received. NYDEC I, 884

F.3d at 456; NYDEC II, 991 F.3d at 447–48. This case

involves no similar disregard of the statutory terms

governing the commencement of the one-year period:

18

California was always prepared to act on each certification request within one year of receiving it.

Grasping at straws, petitioners argue that the

NYDEC decisions reflect the view that § 1341(a)(1),

establishes a “bright-line rule” intended to “reduce

flexibility,” Pet. 23 (quoting NYDEC II, 991 F.3d at

449, 450), and that similar policy concerns require

rejection of the Ninth Circuit’s decision in this case.

That argument fails for several reasons.

To begin, petitioners’ projection of the Second Circuit’s supposed policy concerns onto the different circumstances of this case does not establish a conflict

between the holdings of the cases. The Second Circuit’s holdings rested on the statutory language triggering the one-year period based on the date of “receipt” of a request. The “bright-line rule” dictated by

that language is not implicated here, where the triggering of the one-year period is not at issue.

Moreover, the circumstances of this case, unlike

those of the NYDEC cases, do not involve dalliance by

the state, which was prepared to act on the requests in

this case within one year of receipt. It was petitioners

who failed to supply the information needed for the

state to grant the certification requests and who chose

to withdraw and resubmit their requests to avoid the

state’s denials.

Most tellingly, petitioners’ speculation about how

the Second Circuit’s view of the statute would lead it

to rule in the circumstances of this case ignores the

best evidence on that point—what the Second Circuit

said: “If a state deems an application incomplete, it

can simply deny the application without prejudice—

which would constitute ‘acting’ on the request under

the language of Section [1341(a)(1)]. It could also

19

request that the applicant withdraw and resubmit the

application.” NYDEC I, 884 F.3d at 456; see also NYDEC II, 991 F.3d at 450 n.11 (similar). Recognizing

that the Second Circuit’s statements support the decision below, petitioners belittle them as “dicta.” Pet. 24

n.7. That the sentences were dicta, however, only underscores that the NYDEC cases did not present and

did not decide the question presented here—which is

why their holdings cannot conflict with the decision

below. At the same time, that the statements are not

holdings does not alter the point that they contradict

petitioners’ assertions that the NYDEC opinions

demonstrate that the Second Circuit would reach a result opposed to the Ninth Circuit’s on the facts of this

case.

II. The court of appeals’ decision is correct.

Beyond their erroneous claim of conflict among the

circuits, petitioners argue that the court below erred

in holding that the record lacked substantial evidence

to support FERC’s conclusion that California waived

certification by failing or refusing to act on petitioners’

requests within a year of receiving them. Absent a

conflict, such a factbound claim of error would “rarely”

support a request for review by this Court, even if it

were arguably meritorious. S. Ct. R. 10. And here,

there is no merit to petitioners’ assertion that the

court of appeals’ decision was wrong.

As the court of appeals carefully explained, the record evidence in each proceeding showed that California was prepared to act on each of petitioners’ requests for certification within one year of receiving it,

and would have denied each request without prejudice

based on petitioners’ undisputed failure to perform

and submit an environmental evaluation as required

20

by state law at the time. Pet. App. 22a–26a. As the

court also explained, the undisputed evidence of petitioners’ prolonged failure to comply with this requirement clearly contradicted FERC’s statements that

California “had all of the information it needed” to rule

on the certification requests. Rather, the evidence

showed that the state had “continually reminded” the

applicants “that it did not have the information it

would need to grant a request—namely, the [environmental] evaluation that California law required.” Id.

28a. In light of petitioners’ failure to submit the information needed for a grant of certification, California

predicted that they would prefer to withdraw their requests rather than have them denied, and it requested

that they submit such withdrawals in advance of the

one-year deadline if they did not want the requests to

be denied without prejudice. Id. 23a–26a. It was the

applicants’ choice to withdraw their requests, and it

was their own interest in not having their requests denied—not any interest of the state in delaying a decision—that led them to make that choice. Id. 28a–29a.

Under such circumstances, the plain language of

§ 1341(a)(1) forecloses any finding of waiver. California certainly did not “refuse” to act on the requests:

The record leaves no doubt that California was willing

and prepared to deny each request without prejudice

within a year of receiving it. And a state does not “fail”

to act on a request when it has been withdrawn before

the statutory deadline for action. To “fail” means “[t]o

be deficient or unsuccessful; to fall short of achieving

something expected or hoped for.” Black’s Law Dictionary 739 (11th ed. 2019). Because the statute imposes no obligation to act on requests that have been

withdrawn, not acting on them is not a “failure” to

take any required or expected action. See Pet. 30

21

(acknowledging that a state is not required to act on a

voluntarily withdrawn request to avoid waiver).

Petitioners try to sidestep this point by suggesting

at various points in the petition that California’s former prohibition on granting certification before completion of an environmental evaluation under CEQA

was itself improper because it prevented certification

within the one-year deadline. Petitioners’ attacks on a

requirement that California law no longer imposes,

however, offer no issue of importance for this Court to

resolve. And in any event, the lawfulness of that requirement is not included in the petition’s question

presented and would not properly be before the Court

even if it were, because it was not decided by FERC or

by the court below.4

Had petitioners wished to challenge the lawfulness

of the requirement that they complete an environmental evaluation before certification could be granted,

they could have declined to withdraw their certification requests, received denials without prejudice

based on their failure to comply with the requirement,

and challenged the lawfulness of the denials in a California state court. They did not take that course. The

only question presented here is whether an applicant

who withdraws a request for certification in order to

avoid an inevitable denial without prejudice under

state law can successfully claim that the state waived

certification just by acquiescing in the withdrawal and

allowing the applicant to resubmit the request. Because such proceedings involve no failure or refusal to

act by the state, the answer to that question is no.

––––––––––––––––––––––––

4 Indeed, FERC expressly stated that the reason for the with-

drawal and resubmission was “immaterial.” Pet. App. 45a.

22

III. Accepting petitioners’ arguments would

undermine the certification process by allowing applicants to game the system.

Petitioners’ arguments seek to transform their own

derelictions and delays into a waiver by the state.

That result is unsupported by the statutory language

and would have pernicious consequences. As Judge

Randolph observed in rejecting similar arguments by

the applicants in the Turlock case, petitioners’ approach “could lead to gamesmanship. Applicants could

file certification requests lacking sufficient documentation. That would leave the State in an untenable position. … The State would be stuck with the Hobson’s

choice of either granting certification without necessary information or waiving its power to decide.” 36

F.4th at 1184 (cleaned up). In effect, applicants could

negate state-law certification requirements by refusing to comply with them and then withdrawing their

first requests for certification just in time to avoid denial by the state.

The potential for gamesmanship is magnified

when, as in this case, applicants have benefited for

years from their failure to provide the state with the

information needed to make a merits determination

on certification. As the court of appeals explained, the

consequence of petitioners’ decision to withdraw and

resubmit their requests has been that they have been

able to continue to operate the projects under interim

licenses that are not subject to the water-quality protective conditions that the state would impose through

§ 1341 certification. See Pet. App. 26a–27a. Only after

Hoopa Valley led them to believe that they might be

able to parlay their actions into a permanent exemption from imposition of such conditions did petitioners

change course and ask FERC to find that the state had

23

waived certification by purportedly colluding with

them to delay their licensing proceedings.

Petitioners’ invocation of Hoopa Valley, however,

overlooks that if the circumstances of this case really

placed it within the scope of Hoopa Valley’s holding,

the consequence would not be just that the state had

waived certification, but also that the applicants

themselves had failed “to diligently prosecute [their]

licensing application[s].” Hoopa Valley, 913 F.3d at

1103. Hoopa Valley, after all, was not a case where an

applicant who colluded to delay certification was allowed to benefit by being freed from the Clean Water

Act’s requirements. Rather, in that case, a third party

who opposed relicensing of the project at issue argued

that the agreement between the state and the applicant to delay certification constituted both a waiver of

certification and a failure of the applicant to prosecute

its relicensing application. See id. at 1100. The D.C.

Circuit explicitly recognized that the waiver and failure to prosecute arguments were intimately “connected” and that both turned on whether the agreement between the states and the applicant was permissible. Id. at 1103. If (as the court ultimately concluded) it was not permissible, “then the states’ and

licensee’s actions were an unsuccessful attempt to circumvent FERC’s regulatory authority of whether and

when to issue a federal license.” Id. (emphasis added).

By asserting that Hoopa Valley applies here, petitioners necessarily accuse themselves, as well as California, of scheming to delay their own relicensing proceedings. But contrary to Hoopa Valley’s implication

that an applicant’s participation in such an agreement

to delay certification jeopardizes the license application because it amounts to failure to prosecute, petitioners seek to benefit from what, under their own

24

theory, is their own wrongdoing. Petitioners cannot

have it both ways: If Hoopa Valley applied here, they

would have to accept the consequences of their own

participation in what they call an “impermissible

scheme.” Pet. 3. Accepting petitioners’ invitation to

apply only the aspect of Hoopa Valley’s holding that

would benefit them (its finding of waiver), while allowing them to enjoy the benefits of their self-described

scheming, would greatly compound the ill consequences of extending that decision to the different circumstances of this case.

IV. A number of factors make review of the

question posed by the petition unnecessary and inappropriate at this time.

A. Petitioners complain that California’s “resistance” to FERC licensing proceedings, Pet. 28 n.12,

leads to a “high volume” of delays, resulting from withdrawal and resubmission of certification requests attributable to California’s former requirement that environmental evaluations be completed before certification can be granted, id. 29. They gloss over, however,

the fact that California law has changed, and now permits the state to grant certification prior to completion

of an environmental evaluation if necessary to further

avoid the possibility that FERC will find that the state

waived certification by refusing or failing to take

timely action. See Cal. Water Code § 13160(b)(2).

Even without regard to the change in California

law, the agreement between FERC and the courts of

appeals that states do not waive certification if they

deny certification without prejudice has already led

states, including California, to rely on such denials out

of an abundance of caution rather than acquiescing in

withdrawal and resubmission of requests by

25

applicants. The Turlock case is illustrative: There,

with concerns about waiver raised by the pendency of

Hoopa Valley in the forefront, California acted on a

deficient certification request by denying it without

prejudice rather than allowing the applicants an opportunity to withdraw it.

Together, these two factors will relegate withdrawal and resubmission to a greatly diminished role

in certification proceedings, regardless of the outcome

of this case. The change in California law makes it less

likely that applicants’ failure to perform environmental evaluations will delay water-quality certification,

and D.C. Circuit precedent makes it more likely that

the state will issue denials without prejudice when

certification cannot be granted by the one-year deadline. Accordingly, addressing the consequences of

withdrawal and resubmission is a matter of little or

no ongoing importance. Reviewing that subject in this

case would thus do nothing to streamline future licensing proceedings. It would, however, potentially

cause further delay to the relicensing proceedings in

this case, which would best be advanced by resolution

of pending administrative and state-court challenges

to the state’s certification of each project and completion of the relicensing process subject to valid waterquality conditions imposed by the state.

B. Ongoing rulemaking activity is likely to have a

significant bearing on how courts address waiver issues under § 1341(a)(1) and, therefore, could render

any merits decision this Court might issue if it were

to grant certiorari obsolete or academic. EPA, which

has rulemaking authority under the Clean Water Act,

promulgated a rule in 2020 addressing the determination of the “reasonable period of time” for acting on a

certification request under § 1341(a)(1). See 40 C.F.R.

26

§ 121.6. The rule provides, among other things, that a

“certifying authority is not authorized to request the

project proponent to withdraw a certification request.”

Id. § 121.6(e). That provision, which was inapplicable

to the proceedings in this case but has now gone into

effect, see In re Clean Water Act Rulemaking, 60 F.4th

583 (9th Cir. 2023), would, assuming its validity, inform any determination of whether California could

engage in the kinds of communications with applicants that the petitioners here cite to support their

claim of waiver, in the unlikely event that similar circumstances were to arise in the future.

In 2022, EPA issued a new notice of proposed rulemaking to amend the reasonable-time rule and other

parts of the 2020 rules implementing § 1341. See 87

Fed. Reg. 35,318 (2022). If adopted, the new rule

would delete the provision preventing states from asking applicants to withdraw certification requests and

allow states “to determine on a case-by-case basis

whether and when withdrawal and resubmittal of a

certification request is appropriate.” Id. at 35,342. In

addition, EPA’s rulemaking notice requests comment

on whether it should “establish[ ] regulations specifically authorizing withdrawals and resubmissions in

certain factual situations.” Id. Finalization of the current proposal, or of a possible rule explicitly authorizing withdrawal and resubmission would, like the current rule, affect the outcome if future cases were to

present circumstances similar to those in this case.

Whatever the outcome of the rulemaking—issuance of a new rule allowing states to request withdrawal of certification requests, or retention of the

current rule limiting such requests—EPA regulations

will likely have a substantial effect on the outcome of

any future cases involving circumstances similar to

27

those here. The Court should not reach out to address

the issue in a case that predates the finalization of the

regulatory framework that will govern the issue going

forward. Given the ongoing regulatory process, a decision by the Court in this case could well prove to be

outdated even before it is issued.

C. Finally, the existence of alternative grounds for

affirmance not reached by the court of appeals in light

of its holding that FERC’s orders were not supported

by substantial evidence provides yet another reason

for leaving the decision below undisturbed. The Ninth

Circuit’s decision made it unnecessary for the court to

consider whether the standard announced by FERC in

the wake of Hoopa Valley—that informally coordinated efforts by states and applicants to delay certification amount to waiver under § 1341(a)(1)—is correct

and may be applied retroactively to requests that were

withdrawn and resubmitted before FERC formulated

that rule. See Pet. App. 22a & n.12. If the Court were

to take up this case, those significant questions would

also require consideration.

In addition, the court of appeals did not address

the argument of the environmental-organization respondents that FERC erred by failing to consider

whether petitioners’ unclean hands—as participants

in and principal beneficiaries of the “scheme” to delay

certification that they challenged—should bar them

from benefiting further by escaping the possible imposition of state water-quality conditions on the relicensing of their projects. Given that Hoopa Valley condemns applicants who collude to delay certification as

much as it condemns states, see supra 23–24, that failure would have been fatal to FERC’s orders had the

court needed to address it. Similarly, the court of appeals had no need to address the environmental

28

organizations’ arguments, that, under the circumstances here (including FERC’s application of a new

legal standard and the applicants’ role in preventing

the state from issuing a certification within one year

of the initial request), FERC was required to consider

whether the one-year limit was equitably tolled.

* * *

In short, for several independent reasons, the outcome in this case should and would be the same even

in the unlikely event that the Court were to resolve

petitioners’ question presented in their favor. That

consideration—on top of the absence of any compelling

reason to address the question to begin with—would

make granting certiorari in this case an especially improvident use of this Court’s decisional resources.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

29

Respectfully submitted,

SCOTT L. NELSON

Counsel of Record

MICHAEL MIGIEL-SCHWARTZ

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

snelson@citizen.org

JULIE GANTENBEIN

WATER AND POWER

LAW GROUP PC

2140 Shattuck Avenue

Suite 801

Berkeley, CA 94704

(510) 296-5588

SANJAY NARAYAN

ANDREW MCALEER HAWLEY

WESTERN ENVIRONMENTAL

SIERRA CLUB

LAW CENTER

2101 Webster Street

1037 NE 65th Street, No. 343 Suite 1300

Seattle, WA 98115

Oakland, CA 94612

(206) 487-7250

(415) 977-5769

(for Sierra Club only)

Attorneys for Non-Governmental Respondents

April 2023