NC Department of Environmental v. FERC

3 F.4th 655

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 2, 2021
• Docket: 20-1655
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1655

NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent. ------------------------------

STATE OF WASHINGTON; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF MAINE; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF OREGON; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA,

Amici Supporting Petitioner.

MERCED IRRIGATION DISTRICT; NATIONAL HYDROPOWER ASSOCIATION; NEVADA IRRIGATION DISTRICT; NORTHWEST HYDROELECTRIC ASSOCIATION; PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY, WASHINGTON; SOUTH FEATHER WATER AND POWER AGENCY; YUBA WATER AGENCY,

Amici Supporting Respondent.

No. 20-1671

PK VENTURES I LIMITED PARTNERSHIP,

Petitioner, v.

STATE OF WASHINGTON; STATE OF CALIFORNIA; STATE OF CONNECTICUT; STATE OF MAINE; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF NEW JERSEY; STATE OF OREGON; STATE OF VERMONT; COMMONWEALTH OF VIRGINIA,

MERCED IRRIGATION DISTRICT; NATIONAL HYDROPOWER ASSOCIATION; NEVADA IRRIGATION DISTRICT; NORTHWEST HYDROELECTRIC ASSOCIATION; PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY, WASHINGTON; SOUTH FEATHER WATER AND POWER AGENCY; YUBA WATER AGENCY,

On Petitions for Review of an Order of the Federal Energy Regulatory Commission. (P- 14858; P-4093)

Argued: May 6, 2021 Decided: July 2, 2021

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Petition for review in No. 20-1655 granted and petition for review in No. 20-1671 dismissed in part and denied in part by published opinion. Senior Judge Traxler wrote the opinion, in which Judge King and Judge Thacker joined.

ARGUED: David Montgomery Moore, EARTH & WATER LAW, LLC, Atlanta, Georgia; Asher Paris Spiller, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioners. Susanna Y. Chu, FEDERAL ENERGY REGULATORY COMMISSION, Washington, D.C., for Respondent. ON BRIEF:

2 Joshua H. Stein, Attorney General, Taylor H. Crabtree, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Petitioner North Carolina Department of Environmental Quality. David L. Morenoff, Acting General Counsel, Robert H. Solomon, Solicitor, FEDERAL ENERGY REGULATORY COMMISSION, Washington, D.C., for Respondent. Robert W. Ferguson, Attorney General, Cindy Chang, Assistant Attorney General, Kelly T. Wood, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Seattle, Washington, for Amicus State of Washington. Xavier Becerra, Attorney General, Sarah E. Morrison, Supervising Deputy Attorney General, Tatiana K. Gaur, Deputy Attorney General, Catherina M. Wieman, Deputy Attorney General, Lani M. Maher, Deputy Attorney General, Environment Section, OFFICE OF THE ATTORNEY GENERAL OF CALIFORNIA, Los Angeles, California, for Amicus State of California. William Tong, Attorney General, Jill Lacedonia, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Aaron M. Frey, Attorney General, Scott Boak, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MAINE, Augusta, Maine, for Amicus State of Maine. Dana Nessel, Attorney General, Fadwa Hammoud, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Amicus State of Michigan. Keith Ellison, Attorney General, Peter N. Surdo, Special Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MINNESOTA, Saint Paul, Minnesota, for Amicus State of Minnesota. Gurbir S. Grewal, Attorney General, Kristina Miles, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, Trenton, New Jersey, for Amicus State of New Jersey. Ellen F. Rosenblum, Attorney General, Paul Garrahan, Attorney-in-Charge, Natural Resources Section, OREGON DEPARTMENT OF JUSTICE, Salem, Oregon, for Amicus State of Oregon. Thomas J. Donovan, Jr., Attorney General, Laura B. Murphy, Assistant Attorney General, Environmental Protection Division, OFFICE OF THE ATTORNEY GENERAL OF VERMONT, Montpelier, Vermont, for Amicus State of Vermont. Mark R. Herring, Attorney General, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Jr., Senior Assistant Attorney General, Section Chief, David C. Grandis, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth of Virginia. Charles R. Sensiba, Washington, D.C., Andrea W. Wortzel, Richmond, Virginia, Angela J. Levin, TROUTMAN PEPPER HAMILTON SANDERS, LLP, San Francisco, California; Michael A. Swiger, Sharon L. White, VAN NESS FELDMAN, LLP, Washington, D.C., for Amici Merced Irrigation District, National Hydropower Association, Nevada Irrigation District, Northwest Hydroelectric Association, Public Utility District No. 1 of Snohomish County, Washington, South Feather Water and Power Agency, and Yuba Water Agency.

3 TRAXLER, Senior Circuit Judge:

In this case, we consider two petitions for review challenging the issuance of a

license by the Federal Energy Regulatory Commission (“FERC”) to McMahan

Hydroelectric (“McMahan”), authorizing McMahan to operate the Bynum Hydroelectric

Project (the “Project”) on the Haw River in North Carolina. In Case No. 20-1655, the

North Carolina Department of Environmental Quality (“NCDEQ”) challenges FERC’s

determination that NCDEQ waived its rights under the Clean Water Act to issue a water

quality certification for the Project. In Case No. 20-1671, PK Ventures I Limited

Partnership (“PK Ventures”) challenges FERC’s jurisdiction to issue the license for the

Project. As we will explain, in Case No. 20-1655, we grant NCDEQ’s petition for review,

vacate the license issued by FERC, and remand with instructions for FERC to re-issue the

license to include the water-quality conditions imposed by NCDEQ. In Case No. 20-1671,

we deny in part and dismiss in part PK Ventures’ petition for review.

I.

The Federal Power Act (“FPA”), 16 U.S.C. §§ 791a-825r et seq., created “a

complete scheme of national regulation” to “promote the comprehensive development of

the water resources of the Nation.” First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152,

180 (1946). The FPA provides for “comprehensive control over those uses of the Nation’s

water resources in which the [f]ederal [g]overnment ha[s] a legitimate interest,” including

“navigation, irrigation, flood control, and, very prominently, hydroelectric power.” Fed.

Power Comm’n v. Union Elec. Co., 381 U.S. 90, 98 (1965).

4 Under the FPA, a FERC-issued license is required for the construction,

maintenance, and operation of any hydroelectric project located on “any of the navigable

waters of the United States.” 16 U.S.C. § 817(1). Since 1935, the statute has also required

a FERC license for the construction of hydroelectric projects located on a non-navigable

body of water that is nonetheless subject to Congress’ authority under the Commerce

Clause, if FERC determines that the project will affect interstate or foreign commerce. See

id.; Aquenergy Sys., Inc. v. FERC, 857 F.2d 227, 228 (4th Cir. 1988) (“[FERC] had long

had regulatory authority over [hydroelectric] projects in navigable waters, but until 1935,

one undertaking any activity in non-navigable waters was not required to apply to [FERC]

for anything.”). The license requirement for projects on Commerce-Clause waters operates

prospectively, applying only to projects where qualifying construction occurred after 1935.

See Aquenergy Sys., 857 F.2d at 228; L.S. Starrett Co. v. FERC, 650 F.3d 19, 23 (1st Cir.

2011).

Section 401 of the Clean Water Act (“CWA”) requires an applicant seeking federal

licensing of a project that would result in a discharge to navigable waters to obtain a

certification from the appropriate state agency verifying that the planned project complies

with state water quality requirements. See 33 U.S.C. § 1341(a)(1). If the state concludes

that conditions on the operation of the project are necessary to ensure compliance with its

water quality standards, those conditions must be set out in the § 401 certification, and the

federal licensing agency must incorporate the state’s conditions into the federal license.

See id. § 1341(d). A state waives its certification authority if it “fails or refuses to act on a

request for certification, within a reasonable period of time (which shall not exceed one

5 year) after receipt of such request.” Id. § 1341(a)(l). “No license or permit shall be granted

until the certification required by this section has been obtained or has been waived as

provided . . . . No license or permit shall be granted if certification has been denied by the

State.” Id.

II.

The Project consists of a dam, powerhouse, and related facilities in Chatham

County, North Carolina. The 10-feet high, 900-feet long masonry dam was built in 1874.

The Project converted from a mechanical operation to an electrical hydropower operation

in 1940, when an electrical turbine was installed.

In 1985, FERC issued a 30-year license for operation for the Project; the license was

transferred to Bynum Hydro Company in 1986. Petitioner PK Ventures subsequently

acquired the Project from Bynum, but the license was never formally transferred to PK

Ventures. J.A. 287. The Project last generated electricity more than a decade ago.

Anticipating the 2015 expiration of the license, PK Ventures in 2010 filed a notice

of intent to apply for relicensing of the Project. PK Ventures did not follow through,

however, and never filed a license application for the Project with FERC. On March 30,

2015, McMahan filed an application for a license to operate the Project.

While McMahan’s application was pending, FERC determined that Bynum Hydro

had been dissolved, and FERC transferred the Project license to PK Ventures. PK Ventures

sought rehearing, arguing that it was not the licensee of the Project and asking FERC to

rescind the transfer. FERC granted rehearing and rescinded the transfer, explaining that

“it is in the public interest to allow the license to expire while [FERC] considers

6 McMahan’s application.” J.A. 290. FERC’s order prohibited PK Ventures from operating

the Project or filing its own application while McMahan’s application was under review.

See id. (“[B]ecause PK Ventures failed to file a timely application after being made aware

of the filing deadline . . . , PK Ventures is barred from filing a license or exemption

application for this project while the Commission reviews McMahan’s license application.

In addition, PK Ventures may not operate the project without Commission authorization.”)

(footnotes omitted).

As required by the CWA, McMahan sought a § 401 water-quality certification from

NCDEQ, filing its application on March 3, 2017. On April 26, 2017, NCDEQ sent a letter

directing McMahan to submit a water-quality monitoring plan and giving guidance as to

what should be included in the plan. NCDEQ also asked McMahan to provide it with

FERC’s environmental assessment 1 (“EA”) of the Project.

On December 21, 2017, McMahan emailed a water-quality monitoring plan to

NCDEQ. In the email, McMahan also asked to “discuss refiling” its application since

FERC still had not completed the Project’s EA. J.A. 524. NCDEQ responded to McMahan

on January 3, 2018. NCDEQ acknowledged receipt of the water quality monitoring plan

and told McMahan that “[t]o refile your application, you will need to send a letter stating

1 Under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., “[federal] agencies considering certain projects must evaluate whether the project would have a significant impact on the environment by preparing an Environmental Assessment. . . . If the project would have a significant impact, the agency must prepare an Environmental Impact Statement.” Save Our Sound OBX, Inc. v. N.C. Dep’t of Transp., 914 F.3d 213, 218 (4th Cir. 2019).

7 that you would like to withdraw your application and reapply prior to March 3, 201[8]. We

do not charge an additional review fee when the delay is beyond the applicant’s control as

in your situation.” J.A. 537. On February 20, 2018, McMahan sent NCDEQ a letter

“withdrawing its current application, and re-applying for the 401 Certification.” J.A. 311.

FERC issued the EA on October 25, 2018. After reviewing the EA, NCDEQ staff

met with McMahan on December 19, 2018. NCDEQ staff told McMahan that it would not

be able to issue a § 401 certification by February 20, 2019 (one year after McMahan

withdrew and resubmitted his certification application), in part because of the time frames

imposed by the statutorily mandated public-notice-and-comment process. 2 At that

meeting, McMahan informed NCDEQ that it intended to withdraw and resubmit its

application before expiration of the one-year review period. NCDEQ sent McMahan

written comments about the water-quality monitoring plan the day after the meeting.

On January 18, 2019, McMahan submitted a revised water-quality monitoring plan.

NCDEQ responded on February 7, 2019, stating that the agency had “no further

comment/question on the revised monitoring plan. However, please remember to send

Karen a request to withdraw and reapply (I think the deadline is by February 20th).” J.A.

547. On February 11, 2019, McMahan withdrew and resubmitted its § 401 application.

2 The notice-and-comment period could not have begun before NCDEQ reviewed the EA. As explained in an affidavit from NCDEQ’s supervisor of the § 401 certifications, the environmental assessment “serves as a critical component of any 401 application for a federally licensed hydroelectric project.” J.A. 504. Because “agencies must consider reasonable alternatives, . . . the configuration of a project may change as a result of the EA process. The EA also contains an analysis of environmental impacts that inform NCDEQ’s analysis of the potential impacts on waters of the State.” Id.

8 McMahan asked NCDEQ to put the application on hold again on April 19, 2019, and then

asked NCDEQ to resume review on July 23, 2019.

NCDEQ issued McMahan a § 401 certification for the Project on September 20,

2019. The § 401 certification included several conditions NCDEQ deemed necessary to

ensure compliance with North Carolina’s water quality standards.

On the same day that NCDEQ issued the certification, FERC issued an order (the

“License Order”) granting McMahan a 40-year license to operate the Project. See J.A.

429-79. In the License Order, FERC concluded that NCDEQ had waived its authority to

issue a § 401 certification. FERC determined that the statutory review period began on

March 3, 2017, when McMahan filed its initial application for § 401 certification, and that

“the one-year clock” was not restarted by McMahan’s withdrawals and resubmissions of

its application. J.A. 438-39. Relying on Hoopa Valley Tribe v. FERC, 913 F.3d 1099

(D.C. Cir. 2019), FERC explained that an “ongoing agreement” between an applicant and

the state agency to repeatedly withdraw and resubmit a § 401 certification application over

a period exceeding a year amounts to a waiver of the State’s certification authority. J.A.

439. In FERC’s view, “the record shows that North Carolina DEQ and McMahan Hydro

agreed to a withdrawal and refiling process (and, indeed, that the state agency directed that

activity), such that North Carolina DEQ has delayed the licensing of the Bynum Project.”

Id. (emphasis added). FERC also concluded that the one-year review-period was not tolled

by NCDEQ’s requests for additional information, noting that a contrary rule “could

encourage the states to ask applicants to provide additional data in order to give themselves

9 more time to process certification requests, in contravention of Congress’ intent.” Id. at

440 n.43.

NCDEQ filed a rehearing request with FERC, seeking a rescission of the waiver

determination and asking FERC to incorporate the conditions of the § 401 certification into

the License Order. NCDEQ informed McMahan of its intent to seek rehearing, and

McMahan did not oppose it. In support of rehearing, NCDEQ submitted an affidavit from

Karen Higgins, who was in charge of the division responsible for issuing § 401

certifications. The affidavit detailed the agency’s interactions with McMahan and

explained that in every instance it was McMahan who sought to withdraw his application.

Copies of the correspondence between the parties and other relevant documents were

included as exhibits to the affidavit.

FERC denied NCDEQ’s rehearing request. See J.A. 633-58. In its order, FERC

acknowledged that the first withdrawal “was initiated by McMahan.” J.A. 645.

Nonetheless, FERC stated that it still was

not persuaded that this was a unilateral action by the applicant. North Carolina DEQ instructed McMahan Hydro to send a letter indicating that McMahan Hydro would like to withdraw and reapply and also indicated that no additional review fee was necessary. McMahan Hydro’s February 20, 2018 withdrawal-and-resubmittal letter did not convey any substantive information to North Carolina DEQ, but merely withdrew and resubmitted the very same water quality certification request that had been pending before North Carolina DEQ on that date.

J.A. 645 (footnote omitted). FERC concluded that McMahan and NCDEQ had engaged in

a “coordinated withdrawal and resubmission scheme,” J.A. 646 (internal quotation marks

omitted), for “the purpose of avoiding waiver,” J.A. 648, such that a waiver finding was

10 proper under Hoopa Valley. As to Higgins’ affidavit, which FERC described as only

addressing whether there was a formal agreement between NCDEQ and McMahan, FERC

dismissed it as “unconvincing and irrelevant.” J.A. 649. FERC explained that whether

or not there was a formal agreement, NCDEQ’s “coordination” with McMahan was enough

to establish waiver. J.A. 649.

PK Ventures also filed a request for rehearing with FERC, arguing, inter alia, that

FERC lacked jurisdiction over the Project because the Haw River is not navigable and the

Project does not affect interstate commerce. FERC determined that it properly exercised

jurisdiction and denied PK Venture’s petition for rehearing. NCDEQ and PK Ventures

both petition this court for review of FERC’s orders.

III.

We turn first to Case No. 20-1671, the petition for review filed by PK Ventures. PK

Ventures contends that FERC lacked jurisdiction under the FPA to issue the license to

McMahan and that McMahan’s § 401 application to NCDEQ was not valid under North

Carolina law because McMahan was not the owner of the Project.

A.

Before addressing the merits, we first consider FERC’s contention that PK Ventures

lacks standing to challenge the License Order. See Outdoor Amusement Bus. Ass’n, Inc. v.

Dep’t of Homeland Sec., 983 F.3d 671, 680 (4th Cir. 2020) (“Because standing implicates

our Article III power to hear the case, we must resolve it first.”).

The FPA authorizes a party “aggrieved” by a FERC order to seek judicial review.

16 U.S.C. § 825l(b). “Parties are aggrieved under the Federal Power Act if they satisfy

11 both the constitutional and prudential requirements for standing. The requirement of

aggrievement serves to distinguish a person with a direct stake in the outcome of a litigation

from a person with a mere interest in the problem.” New York Reg’l Interconnect, Inc. v.

FERC, 634 F.3d 581, 586 (D.C. Cir. 2011) (citations and internal quotation marks omitted);

see U.S. ex rel. Chapman v. Fed. Power Comm’n, 191 F.2d 796, 800 (4th Cir. 1951)

(explaining that to have standing under § 825l, “some right or interest of a complaining

party must be invaded to justify him in asking relief in court”), aff’d, 345 U.S. 153 (1953).

“[T]he irreducible constitutional minimum of standing contains three elements: (1)

the [litigant] must have suffered an injury-in-fact, which (2) must be causally connected to

the conduct complained of, and that (3) will likely be redressed if the [litigant] prevails.”

Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir.) (internal quotation marks

omitted), cert. denied, 141 S. Ct. 373 (2020).

In our view, PK Ventures’ ownership of the Project gives it a direct stake in the

outcome of the licensing proceeding and satisfies the requirements for Article III standing.

If FERC does not have jurisdiction over the Project, as PK Ventures contends, PK Ventures

would be free to operate the Project as it sees fit, without a FERC license or oversight. But

if FERC does have jurisdiction and the license to McMahan stands, the FPA authorizes

McMahan to take title to the Project from PK Ventures through eminent domain. See 16

U.S.C. § 814 (“When any licensee cannot acquire by contract . . . the right to use . . . the

lands or property of others necessary to the construction, maintenance, or operation of any

dam, reservoir, diversion structure, or the works appurtenant or accessory thereto, . . . it

may acquire the same by the exercise of the right of eminent domain . . . .”). Because the

12 issuance of the license to McMahan threatens PK Ventures’ continuing use and ownership

of the Project, PK Ventures has suffered a concrete injury-in-fact that would be redressed

were we to rule in its favor. We therefore conclude that PK Ventures is an aggrieved party

with standing to challenge FERC’s issuance of the License Order.

B.

We turn now to PK Ventures’ challenges to FERC’s jurisdiction over the Project.

As previously noted, a FERC license is required to operate a hydroelectric project that

affects interstate commerce and is located on a body of water “over which Congress has

jurisdiction under its authority to regulate commerce with foreign nations and among the

several States,” 16 U.S.C. § 817(1), as long as some “construction” of the project occurred

after 1935, see Aquenergy Sys., 957 F.2d at 228. In its petition for review, PK Ventures

contends FERC lacks jurisdiction to license the Project because the Haw River is not

navigable, the dam was built before 1935, and the Project does not affect interstate

commerce. We disagree.

Whether or not the Haw River is itself navigable, it is a tributary of the Cape Fear

River, which itself is a navigable waterway. See J&T Hydro Co., 50 FERC ¶ 62079, 63082

at n.4 (1990). Accordingly, the Haw River qualifies as a body of water over which

Congress has Commerce Clause authority. See L.S. Starrett Co., 650 F.3d at 24 (“[T]he

headwaters and tributaries of navigable waters are Commerce Clause streams.”) (internal

quotation marks and alterations omitted).

Moreover, the record supports FERC’s determination that qualifying “construction”

of the Project occurred after 1935. Although the dam was built in the late 1800s, a turbine

13 was added in 1940 that converted “a mechanical energy facility with no hydroelectric

generation to a hydroelectric project with 600 kilowatts . . . of new hydroelectric generating

capacity.” J.A. 637. That is enough to satisfy the requirement of post-1935 construction.

See Aquenergy Sys., 857 F.2d at 229 (“Congress did not intend § [817] to apply to ordinary

maintenance, repair and reconstruction activity. . . . At the same time, the statute could

hardly be construed to authorize work which would substantially enlarge or change an

existing plant.”); accord L.S. Starrett Co., 650 F.3d at 26-27 (concluding that post-1935

construction work that increased the project’s power-generating capacity satisfied the

requirements of § 817); Puget Sound Power & Light Co. v. FPC, 557 F.2d 1311, 1316 (9th

Cir. 1977) (project enlargement resulting in increased generating capacity satisfies

construction requirement).

We also reject PK Ventures’ claim that FERC lacks jurisdiction because the Project

has no effect on interstate commerce given that it has not operated for over a decade and is

not presently producing electricity. As FERC explained, it is the proposed use of the

Project that is relevant to FERC’s licensing jurisdiction, not the manner in which the

unlicensed Project is presently being used. See 16 U.S.C. § 817(1) (requiring license for

proposed project on non-navigable Commerce Clause waters if FERC’s investigation of

the “proposed construction” shows that “the interests of interstate or foreign commerce

would be affected by such proposed construction”) (emphasis added).

Because FERC properly exercised jurisdiction over the Project, we deny this portion

of PK Ventures’ petition for review.

C.

14 Finally, we turn to PK Ventures’ claim that McMahan’s § 401 applications were not

valid under North Carolina law.

When McMahan filed its § 401 applications, North Carolina law provided that a

“valid” § 401 application must be signed by “a responsible officer of the company,

municipal official, partner or owner,” and that the signature “certifies that the applicant has

title to the property, has been authorized by the owner to apply for certification or is a

public entity and has the power of eminent domain.” 15A N.C. Admin. Code 2H.0502(f)

(2018). 3 Because McMahan is not the owner of the Project, PK Ventures contends that

McMahan’s applications for a § 401 certification were not valid and that the certification

issued by NCDEQ is likewise not valid.

This claim is, at bottom, a challenge to the propriety of actions taken by NCDEQ.

This court, however, is only authorized to review the actions of FERC, see 16 U.S.C. §

825l(b), and the FPA does not require applicants for a FERC license to own the property

involved in the proposed project. Whether NCDEQ erred by accepting an application filed

by a non-owner is a question of state law for the state courts; we have no authority to weigh

in on the issue or invalidate McMahan’s license on that basis. See City of Tacoma v. FERC,

460 F.3d 53, 67 (D.C. Cir. 2006) (“In most cases, if a party seeks to challenge a state

certification issued pursuant to section 401, it must do so through the state courts.”);

Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1056 (1st Cir. 1982)

3 By the time NCDEQ issued the § 401 certification, a new version of the regulation omitting the owner-signature requirement had taken effect. See 15A N.C. Admin. Code 2H.0502(f) (effective June 1, 2019).

15 (“The courts have consistently . . . rul[ed] that the proper forum to review the

appropriateness of a state’s certification is the state court, and that federal courts and

agencies are without authority to review the validity of requirements imposed under state

law or in a state’s certification.”). Because we lack jurisdiction to review NCDEQ’s

acceptance of McMahan’s § 401 applications, we dismiss that portion of PK Ventures’

petition for review.

IV.

We now turn to the petition for review filed by NCDEQ in Case No. 20-1655.

NCDEQ argues that FERC’s approach to the question of waiver is inconsistent with the

plain language of the CWA and with the purpose of the CWA. Alternatively, NCDEQ

contends that even if FERC’s understanding of the statute is correct, the waiver finding

must be set aside because FERC’s key factual findings are not supported by substantial

evidence.

Our narrow scope of review permits this court to set aside the License Order if it

was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,

or unsupported by substantial evidence.” Appomattox River Water Auth. v. FERC, 736 F.2d

1000, 1002 (4th Cir. 1984) (citation omitted); see 5 U.S.C. § 706(2)(A); 16 U.S.C. §

825l(b). Because FERC does not administer the Clean Water Act, we owe no deference to

its interpretation of § 401. See AES Sparrows Point LNG v. Wilson, 589 F.3d 721, 730 (4th

Cir. 2009) (declining to defer to FERC regulation addressing § 401 because “FERC is not

charged in any manner with administering the Clean Water Act”); Ala. Rivers All. v. FERC,

325 F.3d 290, 296–97 (D.C. Cir. 2003) (“The Commission’s interpretation of the CWA is

16 not entitled to the usual judicial deference, however, because the Environmental Protection

Agency (EPA)—and not FERC—is charged with administering the statute.”).

Under the CWA, a State waives its water-quality certification authority if it “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.” 33 U.S.C. § 1341(a)(1). 4 On

February 20, 2019, McMahan withdrew and resubmitted its application; NCDEQ granted

that application seven months later on September 20, 2019. FERC nonetheless determined

that NCDEQ waived its certification authority because it failed to timely act on McMahan’s

initial application filed on March 3, 2017. In FERC’s view, McMahan’s withdrawal and

refiling of that application did not re-start the review clock because NCDEQ coordinated

with McMahan on the withdrawal-and-resubmittal for the purpose of evading § 401’s one-

year review period.

In its petition for review, NCDEQ argues that FERC’s approach to the waiver

question is inconsistent with the plain language of the CWA. NCDEQ asserts that because

the period for state review begins upon “receipt of such request,” 33 U.S.C. § 1341(a), the

4 In AES Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir. 2009), this court held that § 401 was ambiguous as to whether the review period began when the application was initially filed or when the application was finally complete, and we gave Chevron deference to a regulation of the Army Corps of Engineers providing that the period started when the Corps deemed the application to be complete. See id. at 729-30. The holding of Sparrows Point has no application here, as Sparrows Point did not involve withdrawn and resubmitted applications, and NCDEQ does not contend that McMahan’s initial application was incomplete.

17 statutory waiver provision is “request-specific,” in that it applies only “to the request that

is actually pending and awaiting action from the agency”; once an application is

withdrawn, there is nothing pending before the agency, and therefore nothing for the

agency to act on. Brief of NCDEQ at 28. Accordingly, NCDEQ argues that when

McMahan withdrew the March 2017 application and then the February 2018 application,

those applications were no longer pending before the agency and have no effect on the

question of waiver. NCDEQ timely acted on the application that McMahan filed on

February 11, 2019, by issuing the § 401 certification (with conditions) on September 20,

2019. Because NCDEQ neither failed nor refused to act upon a pending certification

request, NCDEQ contends that FERC’s waiver determination is inconsistent with the plain

language of the statute. NCDEQ argues that Hoopa Valley’s holding is narrow and based

on specific facts wholly absent from this case and that FERC therefore erred by relying on

Hoopa Valley to disregard the effect of the application withdrawals.

As NCDEQ contends, the language of § 401 makes the one-year review period

specific to each application request—the state agency must act on an application within a

year of the filing of that application. See Hoopa Valley, 913 F.3d at 1104 (“Implicit in the

statute’s reference ‘to act on a request for certification,’ the provision applies to a specific

request. This text cannot be reasonably interpreted to mean that the period of review for

one request affects that of any other request.”). Ordinarily, then, the applicant’s withdrawal

of its certification request would end the agency’s obligation to review that application,

and the prior withdrawal would have no effect on the review period available for a

subsequent application. When the new application comes weeks or months after the

18 withdrawal and returns in better developed, more complete form, it seems clear that the

one-year review clock should restart upon receipt of the new application. The issue

becomes a bit murkier in cases like this one, involving the withdrawal and immediate

resubmission of the same application. FERC relies on Hoopa Valley to explain why

McMahan’s withdrawal of its applications did not restart the one-year review clock.

Hoopa Valley involved the Klamath Hydroelectric Project, a series of dams located

on the Klamath River in California and Oregon. In 2004, PacifiCorp sought relicensing of

the project, proposing to relicense only the upper dams and to decommission the others.

See Hoopa Valley, 913 F.3d at 1101. As required by § 401, PacifiCorp also sought water-

quality certifications from Oregon and California. In 2008, a consortium of interested

parties began settlement negotiations to resolve the procedures and the risks associated

with the dams’ decommissioning. By that time, the § 401 certification was the only

requirement of the relicensing process that had not been satisfied. The settlement

negotiations culminated in a written contract that targeted a decommission date of 2020

and placed various environmental and financial obligations on PacifiCorp. The settlement

contract included an agreement to defer the § 401 one-year review period through a process

where PacifiCorp would annually withdraw and resubmit the water quality certification

requests just before the expiration of the one-year review period. See id.

In 2012, the Hoopa Valley Tribe, which was not a party to the settlement agreement,

sought a declaratory order from FERC that PacifiCorp had failed to diligently prosecute its

application and that the States had waived their certification authority. FERC denied the

petition, and the Tribe sought review by the D.C. Circuit. See id. at 1102. The court held

19 that the states had waived their § 401 certification authority by entering into the agreement

with PacifiCorp:

The record does not indicate that PacifiCorp withdrew its request and submitted a wholly new one in its place, and therefore, we decline to resolve the legitimacy of such an arrangement. We likewise need not determine how different a request must be to constitute a “new request” such that it restarts the one-year clock. This case presents the set of facts in which a licensee entered a written agreement with the reviewing states to delay water quality certification. PacifiCorp’s withdrawals-and-resubmissions were not just similar requests, they were not new requests at all. The [settlement contract] makes clear that PacifiCorp never intended to submit a “new request.” Indeed, as agreed, before each calendar year had passed, PacifiCorp sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same request . . . in the same one-page letter . . . for more than a decade. Such an arrangement does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project.

While the statute does not define “failure to act” or “refusal to act,” the states’ efforts, as dictated by the [settlement contract], constitute such failure and refusal within the plain meaning of these phrases. Section 401 requires state action within a reasonable period of time, not to exceed one year. California and Oregon’s deliberate and contractual idleness defies this requirement. By shelving water quality certifications, the states usurp FERC’s control over whether and when a federal license will issue. Thus, if allowed, the withdrawal-and-resubmission scheme could be used to indefinitely delay federal licensing proceedings and undermine FERC’s jurisdiction to regulate such matters.

....

The record indicates that PacifiCorp’s water quality certification request has been complete and ready for review for more than a decade. There is no legal basis for recognition of an exception for an individual request made pursuant to a coordinated withdrawal-and-resubmission scheme, and we decline to recognize one that would so readily consume Congress’s generally applicable statutory limit. Accordingly, we conclude that California and Oregon have waived their Section 401 authority with regard to the Project.

913 F.3d at 1104-05 (emphasis added).

20 Thus, Hoopa Valley is a very narrow decision flowing from a fairly egregious set of

facts, where 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

§ 401 certification request. Under those facts, the D.C. Circuit rejected the parties’ attempt

to camouflage the “contractual idleness” through the annual withdraw-and-resubmit

scheme and determined that the states had waived their certification authority under § 401.

The facts of this case, however, bear little relation to those of Hoopa Valley.

Although McMahan twice withdrew and then immediately resubmitted its certification

requests, those actions were not part of a contractual agreement for agency idleness.

Indeed, there was no idleness on the part of NCDEQ. After McMahan filed its first request

in 2017, NCDEQ’s staff met and corresponded frequently with McMahan. They reviewed

McMahan’s submission and informed it that a water-quality monitoring plan would be

required. They gave McMahan advice about what should be included in the monitoring

plan and reviewed the plan internally when it was finally submitted. These are significant

actions, and they were all taken less than a year after the certification request was filed.

NCDEQ continued to take significant action after McMahan withdrew and resubmitted its

applications in 2018 and 2019. During those times, NCDEQ staff continued to correspond

and meet with McMahan and help in the development of the water-quality monitoring plan.

Once FERC finally issued the EA of the Project, NCDEQ met with McMahan and moved

forward with the statutorily mandated public-notice-and-comment process. And after that

process was completed, of course, NCDEQ proceeded to grant the § 401 certification.

21 Because NCDEQ did in fact take action on McMahan’s applications, FERC is

forced to defend its waiver determination by arguing that § 401 requires final agency action

within one year. That is, FERC contends that to avoid waiver, the state agency must either

grant or deny certification within a year of the filing of the certification request. We are

not convinced FERC’s reading of the statute is correct.

Section 401 requires the state agency to certify or deny compliance with water-

quality standards. The waiver portion of the statute, however, uses a different verb and

provides that a state waives its certification authority if it “fails or refuses to act on a request

for certification” within a year. 33 U.S.C.A. § 1341(a)(1) (emphasis added). If Congress

had intended for the states to take final action on § 401 applications within a year of filing,

the statute could have made that clear by providing that waiver occurs if the agency “fails

to certify or deny compliance with water quality standards within one year.” Since

Congress instead hinged waiver on the agency’s failure “to act” on a certification request,

traditional rules of statutory construction would generally require us to interpret “acting”

on a certification request as meaning something other than certifying or denying

compliance with water-quality standards. See, e.g., Russello v. United States, 464 U.S. 16,

23 (1983) (“Where Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation

marks and alteration omitted); United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972) (per curiam) (“[W]here Congress has carefully employed a term in one place and

excluded it in another, it should not be implied where excluded.”).

22 If this reading of the statute is correct, a state would not waive its certification

authority if it takes significant and meaningful action on a certification request within a

year of its filing, even if the state does not finally grant or deny certification within that

year. Such a reading of the statute would be consistent with the legislative history of the

amendment to § 401 that added the waiver provision, which indicates that the review period

was added to prevent States effectively vetoing federal projects by taking no action on §

401 applications. See Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir.

2011) (“[T]he Conference Report on Section 401 states that the time limitation was meant

to ensure that ‘sheer inactivity by the State . . . will not frustrate the Federal application.’”).

This understanding of the statute would also be consistent with the purposes of the

Clean Water Act generally and § 401 specifically. As this court explained in Sierra Club

v. United States Army Corps of Engineers, 909 F.3d 635 (4th Cir. 2018), the CWA reflects

a “carefully prescribed allocation of authority between federal and state agencies” that

preserves “‘the primary responsibilities and rights of States to prevent, reduce, and

eliminate pollution, to plan the development and use (including restoration, preservation,

and enhancement) of land and water resources.’” Id. at 647 (quoting 33 U.S.C. § 1251(b))

(emphasis added). And while the purpose of § 401’s one-year review period was to prevent

States from delaying federal projects by taking no action on certification requests, the

purpose behind § 401 itself and its certification requirement is “‘to assure that Federal

licensing or permitting agencies cannot override State water quality requirements.’” Id.

(quoting S. Rep. 92–414, at 69 (1971)). Under this reading of the statute, a State that in

good faith takes timely action to review and process a certification request likely would

23 not lose its authority to ensure that federally licensed projects comply with the State’s

water-quality standards, even if it takes the State longer than a year to make its final

certification decision. 5

Nonetheless, despite our reservations about FERC’s reading of the statute and its

approach to the waiver question, we need not definitively resolve those questions in this

appeal. As we will explain, even if we accept FERC’s expansive reading of Hoopa Valley

and assume that FERC’s standard for finding waiver is consistent with the plain language

of the CWA, we agree with NCDEQ that FERC’s key factual findings underpinning its

waiver determination are not supported by substantial evidence. Accordingly, we leave

the statutory-interpretation question for resolution in a case where the outcome depends on

the precise meaning of the statute.

B. FERC contends that it reasonably concluded that North Carolina waived its water-

certification authority by not taking final action on McMahan’s § 401 application because

“(1) [NCDEQ] coordinated with McMahan, arranging for it to withdraw and resubmit its

5 We are not aware of any circuit that has adopted this interpretation of § 401. In NY State Dep’t of Env’t Consv. v. FERC, 991 F.3d 439 (2d Cir. 2021), the Second Circuit rejected this reading of the statute by concluding that the state waived its certification authority under § 401 when it asked the applicant to agree to revise the date of receipt of its certification request by 36 days in order to give the agency time to comply with the required notice-and-comment period before acting on the certification. See id. at 443, 447- 48. However, interpreting § 401 as requiring meaningful action, but not necessarily final action, would not be inconsistent with the decision in Hoopa Valley, which simply held that whatever “fails or refuses to act” in § 401 means, the agencies there had not acted. See Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1105 (D.C. Cir. 2019).

24 certification request on two occasions after receipt of the request, in an effort to avoid the

one-year deadline, and (2) the ‘resubmissions’ were neither new nor significantly

modified.” Brief of Respondent at 24. FERC contends its factual findings are supported

by the record and that our deferential standard of review therefore requires us to uphold the

waiver finding.

Our narrow scope of review permits us to “set aside the FERC’s order only if we

find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law, or unsupported by substantial evidence.” Appomattox River Water Auth., 736

F.2d at 1002 (4th Cir. 1984) (citation and internal quotation marks omitted); see 5 U.S.C.

§ 706(2)(A); 16 U.S.C.A. § 825l(b). “Substantial evidence review is an objective

assessment of the sufficiency of the evidence.” Pirelli Cable Corp. v. NLRB, 141 F.3d 503,

514 (4th Cir. 1998). When conducting this review, we must consider the “whole record”

and “take into account whatever in the record fairly detracts” from the agency’s factual

findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). “Substantial

evidence” means “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” T-Mobile Ne. LLC v. City Council of City of Newport News, Va.,

674 F.3d 380, 385–86 (4th Cir. 2012) (internal quotation marks omitted). Substantial

evidence is more than a mere scintilla of evidence, but it need not be a preponderance of

the evidence. See id. at 385.

We will assume for purposes of this opinion that FERC’s approach to the issue is

correct, such that a finding of waiver under § 401 is appropriate if the applicant and state

agency, in order to avoid the one-year review period, coordinate on a withdrawal-and-

25 resubmission scheme and the resubmitted applications do not differ significantly from the

withdrawn applications. After a careful review of the record and mindful of the deference

to which agency decisions are entitled, we nonetheless conclude that FERC’s factual

findings are not supported by substantial evidence.

(1)

As previously explained, FERC concluded that NCDEQ and McMahan had agreed

to a coordinated withdrawal and resubmission scheme “directed” by NCDEQ in order to

avoid waiver. J.A. 439. While FERC acknowledged that McMahan “initiated” the first

withdrawal, FERC was “not persuaded” the action was really a “unilateral action” by

McMahan because NCDEQ had sent an email “instruct[ing] McMahan Hydro to send a

letter” withdrawing and resubmitting its certification request. J.A. 645. FERC concluded

that, whether or not there was a formal agreement between NCDEQ and McMahan, the

“coordination” between the parties was enough to give rise to waiver under § 401. J.A.

646.

In support of its petition for rehearing, NCDEQ submitted an affidavit from Karen

Higgins, who supervised the staff members reviewing McMahan’s application. Higgins

stated in the affidavit that

NCDEQ never ordered or otherwise required McMahan Hydro to withdraw and resubmit [its] application. Furthermore, NCDEQ never formed any agreement with McMahan Hydro pursuant to which McMahan Hydro withdrew and resubmitted any application. Rather, it is NCDEQ’s understanding that McMahan Hydro voluntarily chose to withdraw and resubmit its application, presumably based on its understanding that NCDEQ could not issue a 401 certification prior to the expiration of the one year statutory period.

26 J.A. 507-08. Although Higgins had relevant knowledge about the McMahan application,

FERC dismissed her affidavit out of hand. Describing the affidavit as “stating that

[NCDEQ] did not have a formal agreement with McMahan,” FERC dismissed the affidavit

as “unconvincing and irrelevant” because a formal agreement was not required to show

coordination between NCDEQ and McMahan. J.A. 649 (emphasis added).

As the block quote above shows, however, Higgins did not simply say that there

was no formal agreement between NCDEQ and McMahan; she specifically denied any

type of coordination with McMahan and stated that the withdrawals and resubmissions

were voluntary actions by McMahan. When presented with this legally competent and

relevant evidence, FERC mischaracterized it and dismissed it as irrelevant. While FERC

is the fact-finder, it cannot “arbitrarily ignore[]” “unrebutted, legally significant evidence”

or “base [its] decision on only isolated snippets of that record while disregarding the rest.”

Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).

Moreover, the correspondence submitted with Higgins’ affidavit support her

assertion that McMahan initiated the withdrawals and resubmissions. Shortly after

McMahan filed its first § 401 certification application, NCDEQ requested that McMahan

submit a water quality monitoring plan and the environmental assessment being prepared

by FERC. McMahan responded on May 12, stating that it did not know when the

environmental assessment would be available and requesting an extension of a previous

deadline to permit submission of the assessment when it was released by FERC. On

December 21, 2017, McMahan emailed NCDEQ the water-quality monitoring plan and

also asked “to discuss refiling [the] 401 application since [McMahan] still hadn’t received

27 [the] Environmental Impact Assessment from FERC.” J.A. 524. NCDEQ acknowledged

receipt of the monitoring plan by email on January 3, 2018, and explained that “to refile

your application, you will need to send a letter stating that you would like to withdraw your

application and reapply prior to March 3, 201[8].” J.A. 537.

A similar sequence of events preceded McMahan’s second withdrawal and

resubmission in February 2019. FERC finally issued the environmental assessment in

October 2018. After reviewing the assessment, NCDEQ notified McMahan that, because

of the public notice-and-comment requirements, it would not be able to issue a § 401

certification by the end of the one-year review. At a meeting in December 2018, McMahan

informed NCDEQ that it intended to withdraw and resubmit its application. See J.A. 507-

08. As part of the follow-up from that meeting, NCDEQ sent McMahan an email on

February 7, 2019, stating that the agency had no further comments on the water-quality

monitoring plan and reminding McMahan to “remember to send Karen a request to

withdraw and reapply (I think the deadline is by February 20th).” J.A. 547.

FERC relied on the January 2018 email to support its finding of coordination

regarding the first withdrawal and resubmission of the application and the February 2019

email to show coordination over the second withdrawal and resubmission. When those

emails are considered in their full context, however, they simply do not support FERC’s

coordination finding. See Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378

(1998) (An agency “engaged in simple factfinding . . . is not free to prescribe what

inferences from the evidence it will accept and reject, but must draw all those inferences

that the evidence fairly demands.”). The emails do not establish that NCDEQ directed

28 McMahan to withdraw and resubmit its application or coordinated with McMahan on a

scheme intended to thwart the statutory review period. Instead, the full record shows that

in both instances, McMahan, for its own purposes, raised the prospect of withdrawing and

resubmitting its application. NCDEQ did not broach the subject, but merely answered

questions and reminded McMahan of the time frame if it intended to proceed.

Indeed, FERC has since refused to find coordination in the face of very similar

evidence. In KEI (Maine) Power, 173 FERC ¶ 61069 (2020), FERC concluded that a

withdrawal-and-resubmission by the applicant did not give rise to a waiver of the state’s

certification authority because the withdrawal was not done “at the behest” of the state

agency. Id. at 61497. Instead, the purpose of the withdrawal and refiling was “to give KEI

Power the opportunity to avoid receiving a certification with conditions to which it objected

and instead to allow it to negotiate further to achieve an outcome to its liking.” Id. at

61497-98. FERC reached this conclusion despite the existence of an email from the agency

telling the applicant to “[s]ubmit what you have, along with the statement regarding

withdraw and resubmit. Once you’ve withdrawn and resubmitted, you can then submit

additional comments.” Id. at 61498 (internal quotation marks omitted). FERC explained

that the email

shows that Maine DEP worked with KEI Power, but does not demonstrate that the state either encouraged or supported withdrawal and resubmittal.... While Maine DEP may have provided KEI Power information as to process, we do not find this email chain to reflect that Maine DEP sought withdrawal and resubmittal to circumvent the one-year statutory deadline for the state agency to act. Unlike instances where state agencies sent unsolicited reminder emails for licensees to withdraw and resubmit to allow the state more time to complete its processing and review, here the record reflects the genesis of the withdrawal and resubmittal to be on KEI Power.

29 Id.

We see no meaningful difference between the emails sent by NCDEQ in this case

and the emails sent by the Maine agency in KEI Power, and the record is devoid of any

other evidence that would support FERC’s decision to draw opposite inferences from

similar evidence. The correspondence from McMahan contains no hint that NCDEQ

initiated or directed McMahan’s withdrawal-and-resubmissions. In its February 2018

letter formally withdrawing the first application, McMahan noted FERC’s delay in

preparing the environmental impact assessment for the Project, but did not suggest that

NCDEQ had any role in its decision. See J.A. 311. McMahan’s second withdraw-and-

resubmit letter, in February 2019, included a timeline of the application process. The letter

simply states that McMahan “is withdrawing its current application, and re-applying for

the 401 Certification,” and goes on to note that in February 2018, “McMahan submitted a

request for [NCDEQ] to withdraw and re-apply its application for a 401 Water Quality

Certificate.” J.A. 427. Nothing in the letter or timeline provides any basis for concluding

that NCDEQ coordinated or was otherwise involved in any nefarious way with McMahan’s

withdrawal and resubmission of its applications for § 401 certification.

In support of its finding of coordination, FERC notes that, after McMahan’s first

withdrawal and resubmission in February 2018, NCDEQ told McMahan that it would not

be able to issue the § 401 certification by February 2019 and that McMahan withdrew and

resubmitted its application for a second time in response to that information and after a

reminder email from NCDEQ. In our view, the inferences FERC is attempting to draw

from this thin evidence are not reasonable.

30 As we have explained, FERC’s environmental assessment of the Project was a

critical part of the information NCDEQ needed to evaluate McMahan’s certification

request. FERC did not issue the EA, however, until the fall of 2018. After reviewing the

EA, NCDEQ informed McMahan that it could not grant the certification by February 2019,

in part because of public-notice requirements. NCDEQ, however, did not follow up that

statement with a request that McMahan withdraw and re-apply so to give the agency more

time, nor is there any other evidence in the record suggesting that NCDEQ was informally

seeking McMahan’s help in avoiding the one-year deadline. Absent other evidence

indicating an improper motive or showing that McMahan understood the agency to be

pressuring it to withdraw and resubmit the application, NCDEQ’s factual statement about

how long it would take to issue the certification does not support FERC’s finding of

improper coordination.

If NCDEQ could not have granted the certification by February 2019, it quite easily

could have denied certification, which is what NCDEQ contends it would have done had

McMahan not chosen to withdraw and resubmit its application. FERC has previously held

that no waiver arises when an applicant withdraws and resubmits its application in the

hopes of avoiding a certification that imposes unfavorable conditions. See Village of

Morrisville, Vermont, 173 FERC ¶ 61156, 61940 (2020) (“[W]here the licensee withdraws

and refiles its application in order to avoid potentially unfavorable water quality

certification conditions, the licensee acts unilaterally for its own benefit and by its own

initiative, which is not a sufficient basis to find waiver.”); KEI (Maine), 173 FERC at

61497-98 (finding no waiver where applicant unilaterally withdrew and resubmitted its

31 certification request in order “to avoid receiving a certification with conditions to which it

objected and instead to allow it to negotiate further to achieve an outcome to its liking”).

We see no basis for FERC to take a different approach to McMahan’s withdrawals and

resubmissions, given that a denial of certification prevents the granting of a federal license

and thus works to the disadvantage of the applicant, perhaps even more so than the granting

of § 401 certification that includes unfavorable conditions. McMahan thus withdrew and

resubmitted its certification requests for the same reason as the applicants in KEI and

Village of Morrisville—to avoid undesirable agency action.

The only evidence in the record addressing the full circumstances of McMahan’s

withdrawal of its certification applications are the affidavit and exhibits submitted by

NCDEQ in support of its petition for rehearing. McMahan did not request the waiver

finding during the course of the FERC licensing proceeding, nor did it object to NCDEQ’s

rehearing petition or submit any evidence showing that NCDEQ requested or directed

McMahan to withdraw its applications. FERC, however, never grappled with this

significant quantity of evidence showing that McMahan acted independently when

withdrawing and resubmitting its applications. Instead, it focused primarily on two emails,

stripped of all context, and dismissed all other evidence as “unconvincing and irrelevant.”

J.A. 649.

As we have explained, NCDEQ’s emails from February 2018 and February 2019

cannot be viewed as evidence of improper coordination between NCDEQ and McMahan.

Those emails—as demonstrated by the evidence that FERC declined to consider—were

responses providing procedural information after McMahan stated its intention to withdraw

32 and resubmit its applications. If (as we are assuming) mere coordination between an

applicant and the state agency can lead to a finding of waiver under § 401, then it must take

more than routine informational emails to show coordination. Were the rule otherwise,

applicants could manipulate state agencies into inadvertently waiving their certification

authority just by asking questions. The States’ rights and responsibilities to ensure

compliance with their own water-quality standards are too important to be so easily

stripped away. Accordingly, after reviewing the record as a whole, we are constrained to

conclude that FERC’s finding of improper coordination is not supported by substantial

evidence. See Universal Camera, 340 U.S. at 488 (“[A] reviewing court is not barred from

setting aside a Board decision when it cannot conscientiously find that the evidence

supporting that decision is substantial, when viewed in the light that the record in its

entirety furnishes, including the body of evidence opposed to the Board’s view.”); Ai Hua

Chen v. Holder, 742 F.3d 171, 181 (4th Cir. 2014) (granting petition for review because

the agency failed to account for strong contradictory evidence “in a meaningful way” and

the agency opinion failed “to demonstrate that the agency gave [the contradictory evidence]

more than perfunctory consideration”).

(2)

FERC contends a relevant factor when deciding the waiver question is whether the

new application filed after withdrawal included substantial changes from the application

that was withdrawn. In this case, FERC argues that McMahan’s resubmitted applications

were identical to those withdrawn, which supports its conclusion that McMahan and

33 NCDEQ were engaged in a sham withdrawal-and-resubmit scheme to avoid the one-year

review period of § 401.

Although FERC did discuss the “new application” issue in the orders issued in this

case, it is apparent from the orders that the supposed coordination between McMahan and

NCDEQ was the dispositive factor in its waiver finding. Indeed, FERC made this point

explicitly in its recent decision in Village of Morrisville. In that case, FERC explained that

whether the refiled applications were materially different from the original applications

alone is not dispositive in determining whether there is waiver. . . . [A] state waives its certificate authority under section 401 if it deliberately circumvents the one-year deadline or agrees with the applicant to do so. If, instead, the applicant voluntarily delays the issuance of a water quality certificate by withdrawing and refiling its application, absent an agreement with the state, then waiver is not warranted, regardless of whether or to what extent the refiled application changes from the original. Here, Morrisville by its own initiative withdrew and refiled the applications to obtain more favorable conditions and give itself more time to consider various studies and alternatives, so we need not consider the extent to which the various applications differed.

173 FERC at 61941 (emphasis added). Accordingly, even if the applications here were

identical, the dispositive issue under FERC’s own standard is whether the state agency

encourages the withdrawal or otherwise coordinates with the applicant on a process of

withdrawing and resubmitting the applications. As we have explained, FERC’s

coordination finding is not supported by substantial evidence. Because the evidence does

not establish coordination, FERC’s waiver finding cannot be sustained even if the

resubmitted applications were identical to the withdrawn applications.

34 Assuming without deciding that a State may waive its certification authority under

§ 401 by coordinating with an applicant in a scheme to defeat the statutory review period

through a process of withdrawing and resubmitting the certification application, we

conclude that FERC’s finding of coordination between McMahan and NCDEQ is not

supported by substantial evidence. And without evidence of improper coordination, FERC

erred by concluding that North Carolina waived its certification authority under § 401.

Accordingly, in Case No. 20-1655, we hereby grant NCDEQ’s petition for review, vacate

the License Order, and remand the matter to FERC with instructions that the McMahan

license be re-issued to include the conditions imposed by NCDEQ in its § 401 certification.

See 33 U.S.C. § 1341(d).

In Case No. 20-1671, we dismiss for lack of jurisdiction that portion of PK

Ventures’ petition for review challenging the validity of McMahan’s state applications for

a § 401 certification. Finding no merit to the remaining claims, we otherwise deny PK

Ventures’ petition for review.

No. 20-1655: Petition for review granted; order vacated and remanded with instructions

No. 20-1671: Petition for review dismissed in part and denied in part