Village of Morrisville, Vermont v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2025 Decided May 16, 2025
No. 21-1042
VILLAGE OF M ORRISVILLE, VERMONT,
P ETITIONER
v.
FEDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
VERMONT A GENCY OF N ATURAL R ESOURCES ,
INTERVENOR
Consolidated with 21-1109
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Paul V. Nolan argued the cause for petitioner. With him
on the briefs was Carolyn Elefant.
Matthew R. Christiansen, General Counsel, Federal
Energy Regulatory Commission, argued the cause for
respondent. With him on the brief were Robert H. Solomon,

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Solicitor, and Scott Ray Ediger, Attorney. Jared B. Fish,
Attorney, Federal Energy Regulatory Commission, entered an
appearance.
Laura Bucher Murphy, Assistant Attorney General, Office
of the Attorney General for the State of Vermont, argued the
cause and filed the brief for intervenor for respondent.
Christophe Courchesne was on the brief for amici curiae
American Whitewater, et al. in support of respondent.
Before: W ILKINS and KATSAS , Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: Pursuant to the Federal
Power Act, the Federal Energy Regulatory Commission
(“FERC” or “Commission”) issues licenses to parties who
propose to construct and operate hydroelectric projects. 16
U.S.C. § 797(e). The licenses may range between 30 and 50
years. Id. § 808(e). When a proposed hydroelectric project may
result in a discharge into navigable waters, the applicant must
also obtain a water quality certification from the State in which
the discharge will originate. 33 U.S.C. § 1341(a)(1) (“Section
401”). State certifications may also attach conditions to the
project’s operation. Id. § 1341(d). If the State fails or refuses to
act on an applicant’s request for certification within a
reasonable period of time (not to exceed one year), the
certification requirements are waived. Id. § 1341(a)(1).
However, FERC will not issue a license until the required state
certification has been obtained or has been waived. Id.

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Determining whether a proposed hydroelectric project
complies with applicable environmental standards can be an
iterative and time-consuming process. As a result, States
occasionally allow applicants to withdraw and resubmit their
certification applications in order to reset the one-year statutory
clock. This practice allows applicants to supplement their
applications or revise proposals for environmental viability in
the process of seeking state certifications.
When a party seeks to renew a license, the established
hydroelectric project may continue to operate under interim
annual federal licenses that extend the terms of the original
license while the state certification process is pending. See 16
U.S.C. § 808(a)(1); 18 C.F.R. § 16.18. As a result, during the
process of renewal, the withdrawal-and-resubmission practice
can create perverse incentives. This is because parties seeking
to renew a license may have an incentive to indefinitely delay
state certification so as to avoid having to satisfy more stringent
environmental standards that were adopted after the original
license and state certification were issued. And States likewise
may wish to avoid more stringent federal regulation.
We addressed the withdrawal-and-resubmission issue in
Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019).
The court held that when a State and an applicant enter into an
agreement allowing the applicant to withdraw and resubmit
solely with the intention of delaying certification, this “usurp[s]
FERC’s control over whether and when a federal license will
issue.” Id. at 1104. The court thus held that such “deliberate
and contractual idleness” will be viewed as a waiver of the
State’s statutory certification authority. Id. at 1104-05.
In the cases now before the court, Petitioner Village of
Morrisville, Vermont (“Morrisville”) sought to renew its
federal license to operate a hydroelectric project in the

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Lamoille River Basin, which has been in operation since 1981.
After lengthy discussions with the Vermont Agency of Natural
Resources (“Vermont”) that involved two rounds of revisions
and additional data, Vermont issued Morrisville a conditional
water certification for the project. Dissatisfied with the State’s
certification conditions, Morrisville now seeks to nullify them
by contending that Vermont waived its statutory certification
authority when it allowed Morrisville to twice withdraw and
resubmit its application.
We deny Morrisville’s petitions for review. The record in
this case makes it clear that Morrisville unilaterally withdrew
and resubmitted its application to buy itself time to negotiate
more favorable conditions with the State. This is vastly
different from the situation that we faced in Hoopa Valley. In
these circumstances, we conclude that the State did not waive
its statutory certification authority.
I. B ACKGROUND
A. Section 401 of the Clean Water Act
Two intertwining statutes regulate the licensing of
hydroelectric projects in the United States. Under the Federal
Power Act, parties must obtain a license from FERC. 16 U.S.C.
§ 817(1). Once the original term of a license expires, parties
must petition the Commission for a license renewal. See id.
§ 808(a). As noted above, however, interim annual licenses
allow parties seeking license renewal to continue operating
under the original license’s terms while their applications for
relicensing are pending. Id. § 808(a)(1); 18 C.F.R. § 16.18.
If a proposed hydroelectric project may result in water
pollution discharges, it must further comply with the licensing
scheme established by the Clean Water Act, which “protect[s]

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the primary responsibilities and rights of States to prevent,
reduce, and eliminate pollution” occurring within their
boundaries. 33 U.S.C. § 1251(b); see also Alcoa Power
Generating Inc. v. FERC, 643 F.3d 963, 971 (D.C. Cir. 2011)
(observing that the Clean Water Act “reinforc[ed] the role of
States as the prime bulwark in the effort to abate water
pollution” (citation and internal quotation marks omitted));
S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370, 386
(2006) (describing this statutory framework as “a system that
respects the States’ concerns” over water pollution).
Reflecting this allocation of responsibilities, section 401 of
the Clean Water Act requires the input of States where projects
are located before FERC can issue or renew a federal license.
Specifically, the statute mandates that an applicant for a federal
license whose project “may result in any discharge into the
navigable waters” must first “provide the licensing or
permitting agency a certification from the State in which the
discharge originates or will originate” certifying that the
project will comply with certain federal and state
environmental requirements. 33 U.S.C. § 1341(a)(1), (d).
Where a State denies a water quality certification, no federal
license or permit shall be granted. Id. § 1341(a)(1). And if a
State issues a conditional certification that imposes operational
limitations on the project, such as “effluent limitations” and
“monitoring requirements,” these requirements “shall become
a condition on any Federal license or permit.” Id. § 1341(d).
Because the state water quality certification is a
prerequisite for a federal license, Congress sought to “prevent
a State from indefinitely delaying a federal licensing
proceeding.” Hoopa Valley, 913 F.3d at 1104-05 (internal
citations omitted). This “time limitation was meant to ensure
that ‘sheer inactivity by the State . . . will not frustrate the
Federal application,’” which “would occur if the State’s

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inaction, or incomplete action, were to cause the federal agency
to delay its licensing proceeding.” Alcoa Power, 643 F.3d at
972 (alteration in original) (quoting H.R. R EP . NO. 91-940, at
55 (1970)). To this end, the statute provides that
[i]f the State . . . fails or refuses to act on a request for
certification, within a reasonable period of time
(which shall not exceed one year) after receipt of such
request, the certification requirements of this
subsection shall be waived with respect to such
Federal application.
33 U.S.C. § 1341(a)(1).
In implementing the statute, the Commission requires that
federal license applicants provide either a copy of the water
quality certification, a copy of the dated request for such
certification, or “[e]vidence of waiver.” 18 C.F.R. § 5.23(b)(1)
(2003). A certification is considered waived, the Commission
explains, when “the certifying agency has not denied . . . or
granted certification by one year after the date the certifying
agency received a written request for certification.” Id. §
5.23(b)(2). In other words, “if [a State] agency does not grant,
grant with conditions, deny, or expressly waive water quality
certification within one year of receiving a certification
application, the agency has waived its authority to do so.”
Tower Kleber Ltd. P’ship, 186 FERC ¶ 61,149, at P 21 (2024).
B. Withdrawals and Resubmissions of Requests for State
Certifications
The statutory one-year time limit on state certifications may
pose problems because certifying environmental compliance is
often a lengthy process that can take much longer than one
year. States often have stringent environmental standards that

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require applicants to conduct studies and collect new data on
the environmental impact of new projects. See, e.g., Turlock
Irrigation Dist. v. FERC (“Turlock II”), 36 F.4th 1179, 1181
(D.C. Cir. 2022) (describing California’s requirement that
applicants must follow a separate process under the California
Environmental Quality Act); N.C. Dep’t of Env’t Quality v.
FERC, 3 F.4th 655, 662, 669 (4th Cir. 2021) (discussing North
Carolina’s requirement that applicants submit a water quality
monitoring plan); Brookfield White Pine Hydro LLC v. FERC,
No. 23-1075, 2024 WL 3311809, at *2 (D.C. Cir. July 5, 2024)
(per curiam) (discussing Maine’s process of water certification
which prompted additional data regarding safe fish passage);
Tower Kleber Ltd. P’ship, 186 FERC ¶ 61,149, at P 3
(describing applicant’s supplementation of Michigan
certification application with results of a fish study).
The need for supplemental data typically applies to both
new licenses and renewals. When a license is up for renewal,
the required data needed to support a state certification usually
have not been collected since the last license was issued—often
decades prior and presumably under “far fewer environmental
conditions than are required under current federal law.”
Turlock II, 36 F.4th at 1183 n.6; see also Cal. State Water Res.
Control Bd. v. FERC, 43 F.4th 920, 924 (9th Cir. 2022), cert.
denied sub nom. Nev. Irrigation Dist. v. Cal. State Water Res.
Control Bd., 143 S. Ct. 2459 (2023).
Because applicants often need more time to collect
environmental data, States sometimes face a “Hobson’s
choice” between “granting certification without necessary
information or waiving [their] power” to issue certifications
under the statute. Turlock II, 36 F.4th at 1184 (cleaned up). One
solution to this dilemma is to deny the certification without
prejudice, giving the applicant more time to conduct the
necessary additional studies before they re-file. See id. at 1181.

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Another solution is to allow the applicant to withdraw and
resubmit the certification request. This, in theory, should reset
the one-year clock in section 401. See Cal. State Water, 43
F.4th at 925-26 (explaining the prevalence of this
withdrawal-and-submission practice among multiple states
“over the last several decades”). This practice gives applicants
more time to review and supplement their certification
applications rather than incurring denial without prejudice for
failure to provide information that may be laborious to collect.
Despite some “misgivings,” the Commission initially
appeared to accept this withdrawal-and-resubmission approach
as consistent with the statute. Id. (collecting administrative
decisions). But in Hoopa Valley, we rejected this workaround
when the States of California and Oregon entered into a written
agreement for repeated withdrawals and resubmissions for the
same application “for more than a decade.” 913 F.3d at 1105.
Given Congress’s express intent to prevent States from
frustrating the federal licensing process through “dalliance” or
“delay,” we held that such a coordinated scheme did not reset
the clock under section 401. Id. at 1101, 1104 (quoting 115
C ONG. R EC . 9264 (1969)). Instead, we found that such
“deliberate and contractual idleness” constituted waiver of the
States’ certification authority. Id. at 1104-05.
Since Hoopa Valley, the Commission has adopted a similar
approach where the record indicates a coordinated scheme or
agreement between the applicant and the State agency to delay
the certification process. See, e.g., Placer Cnty. Water Agency,
169 FERC ¶ 61,046, at PP 17-18 (2019) (finding waiver where
California “explicitly request[ed] withdrawal and
resubmission” from the applicant over a five-year period); N.Y.
State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439 (2d
Cir. 2021) (affirming FERC order finding waiver where New

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York had asked the applicant to stipulate to a different receipt
date to circumvent the one-year deadline).
But the Commission, as well as two of our sister circuits,
have distinguished Hoopa Valley to uphold withdrawals and
resubmissions where there was no evidence of coordination
with the State, and only the applicant’s unilateral requests for
additional time. See Cal. State Water, 43 F.4th at 932-36; N.C.
Dep’t of Env’t Quality, 3 F.4th at 671-76; see also KEI (Maine)
Power Mgmt. (III) LLC, 173 FERC ¶ 61,069, at P 42 (2020)
(finding that petitioner’s withdrawals and resubmissions that
were unilateral and in its own interest, rather than “at the behest
of the state,” did not constitute waiver).
C. Facts
Petitioner Morrisville, a village in north-central Vermont,
has operated a hydroelectric project in the Lamoille River
Basin since obtaining a 35-year federal license in 1981. The
project consists of four developments: Green River, Lake
Elmore, Morrisville, and Cadys Falls. With its license set to
expire in 2015, Morrisville filed an application for a new
federal license with the Commission in April 2013.
In December 2013, after the Commission issued a public
notice of the license renewal application and solicited
comments, the Vermont Agency of Natural Resources
published comments noting that the relicensing would need to
address specific environmental and water management
concerns. The State emphasized three potential issues with the
project: bypass flows to support aquatic habitats in Morrisville
and Cadys Falls, conservation flow management in Green
River, and water level management of the Green River
reservoir and Lake Elmore. Vermont then proposed
environmental recommendations for addressing these matters

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that were significantly stricter than those planned by
Morrisville at the time.
Shortly thereafter, in January 2014, Morrisville filed an
application for a water quality certification with Vermont.
After acknowledging receipt of the certification request,
Vermont asked Morrisville for additional information.
Providing the requested information would require additional
tests, however. In light of Vermont’s prior indications that it
would impose conditions on the project absent certain
modifications, Morrisville and Vermont then engaged in
months-long discussions to address the State’s concerns,
including the collection of additional data and studies provided
by both parties. After this round of discussions, Morrisville
produced a revised proposal in October 2014. While the parties
continued to discuss, Morrisville then withdrew and
resubmitted its application for the certification on two separate
occasions.
First, in early November 2014, Morrisville wrote to
Vermont withdrawing and resubmitting its application,
explaining that it was doing so “[t]o accommodate [Vermont’s]
review of Morrisville’s various proposals, including its
recently submitted phase-in proposal” from a week prior.
Letter from Craig Myotte, Morrisville Water & Light Dep’t, to
Peter LaFlamme, Director, Vt. Dep’t of Env’t Conservation
(Nov. 7, 2014), J.A. 292. Morrisville contends that it did so at
Vermont’s request, relying on internal correspondence
discussing a suggestion to withdraw and resubmit that came
from state officials. The record also shows that Morrisville
internally weighed the costs and benefits of withdrawing and
resubmitting, including the likelihood that Vermont would
issue a water certification imposing onerous conditions on the
relicensed project absent additional discussions.

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In the months that followed, Vermont reached out to
Morrisville once again requesting additional information, and
the parties continued to discuss the project. After these
additional discussions, Morrisville then made its second
withdrawal and resubmission in September 2015, expressing
that it needed more time to review new reports and to provide
additional information, and that Morrisville’s trustees had
asked for new cost estimates that it needed time to provide to
them. Vermont eventually acquiesced to this second extension
on the condition that Morrisville ultimately implement
Vermont’s bypass flow recommendations. Vermont further
stated that it would not allow extensions beyond December
2015, and that Morrisville needed to provide a firm timeline for
its completion of its outstanding tasks during that additional
period. Morrisville then again withdrew and resubmitted its
application, asking Vermont to consider, as a renewed
application, all the additional proposals and data filed since the
second certification request.
Less than a year later, Vermont then issued a conditional
certification. Among the conditions imposed was that the
Green River Development’s reservoir must be maintained
above 1218.5 feet mean sea level at all times. This condition
prompted FERC to request that Morrisville conduct additional
engineering studies on the effects of this limitation on the
Green River Development’s dam. Unhappy with the conditions
and with the need to conduct even more additional studies,
Morrisville litigated the certification in Vermont state court,
with the Vermont Supreme Court affirming the relevant
conditions. See In re Morrisville Hydroelectric Project Water
Quality, 224 A.3d 473, 476 (Vt. 2019). In view of this decision,
FERC reiterated the need for the additional studies.

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D. Procedural History
After exhausting its challenges to the conditions on the
merits, Morrisville then filed the petitions at issue here,
alleging that Vermont had waived its statutory right to issue
any conditions by allowing Morrisville to withdraw and
resubmit its application. Contending that a scheme to delay the
certification process existed here as in Hoopa Valley,
Morrisville asked FERC to set aside the water quality
certification – and the conditions it imposed – as waived under
section 401.
The Commission denied Morrisville’s petition, issuing a
declaratory order finding that there had been no waiver. After
denying rehearing of this order by operation of law, the
Commission elaborated that Hoopa Valley was concerned with
the motivations of the parties, and that waiver required either
evidence of coordinated and “deliberate . . . idleness,” or that
the State had requested withdrawal and resubmission “with the
motivation” to reset the clock, neither of which was
demonstrated here. Order Addressing Arguments Raised on
Rehearing, 174 FERC ¶ 61,141, at P 12 (Feb. 24, 2021), J.A.
22-23.
Instead, FERC found that Morrisville had withdrawn and
resubmitted its application “unilaterally and in its own
interest,” rather than “at the behest of the state.” Id. The
Commission further found that the correspondence Morrisville
had submitted as evidence of coordination only showed
Morrisville’s internal motivations to obtain more favorable
conditions. It therefore declined to find waiver.
Morrisville then filed this appeal, alleging that the
Commission’s conclusions were not supported by substantial

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evidence and that the order should be set aside as arbitrary and
capricious under 5 U.S.C. § 706(2)(A).
II. ANALYSIS
A. Standard of Review
We set aside FERC orders under the Administrative
Procedure Act if we determine that they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Under 16 U.S.C.
§ 825l(b), we accept the Commission’s findings of fact where
they are supported by substantial evidence. We therefore
uphold the Commission’s factual determinations if we “find
that the evidence on which the finding is based is substantial.”
Turlock Irrigation Dist. v. FERC (“Turlock I”), 786 F.3d 18,
28 (D.C. Cir. 2015). Although this standard “requires more
than a scintilla” of evidence, it “can be satisfied by something
less than a preponderance of the evidence.” Id. Meanwhile,
questions of law, such as what constitutes waiver under section
401, are reviewed de novo. See Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244, 2261 & n.4 (2024).
B. Standing
Before we reach the merits, we must first address the
threshold question of whether Morrisville has satisfied Article
III standing. California v. Texas, 593 U.S. 659, 668 (2021).
While the Federal Power Act vests this court with jurisdiction
to review petitions by parties “aggrieved” by final Commission
orders, 16 U.S.C. § 825l(b), a “party is ‘aggrieved’ only if it
has Article III standing.” Orangeburg v. FERC, 862 F.3d 1071,
1077 (D.C. Cir. 2017). To satisfy this constitutional
requirement, a petitioner must demonstrate that it has suffered
an injury in fact that is “fairly traceable to the defendant’s

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allegedly unlawful conduct and likely to be redressed by the
requested relief.” California, 593 U.S. at 668-69 (internal
quotation marks omitted); see also Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992).
Vermont charges that Morrisville lacks standing because
the injury it alleges stems from the certification’s conditions,
and thus would not be redressed by the remedy it seeks –
namely, a decision from this court setting aside FERC’s
conclusion that Vermont did not waive the certification. See
Marino v. Nat’l Oceanic & Atmospheric Admin., 33 F.4th 593,
596 (D.C. Cir. 2022) (“To establish redressability, a plaintiff
must prove ‘a likelihood that the requested relief will redress
the alleged injury.’” (quoting Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 103 (1998))). According to Vermont, a
finding of waiver would only redress any injury caused by a
State’s delay in issuing the certification, rather than harm
flowing from conditions imposed in a certification issued after
the statutory period. Because Morrisville does not allege that it
was harmed by any delay, Vermont argues, there is no
sufficient nexus between the injury here and the remedy
sought.
We disagree. While a section 401 waiver is not the original
cause of the harmful conditions, Vermont’s argument ignores
an intervening cause of Morrisville’s current injury: the FERC
order and a subsequent directive requiring Morrisville to
comply with the certification’s conditions, including that it
conduct additional engineering studies in connection with its
current licensing application. Because Morrisville’s current
injury is therefore not the waiver or delay, but FERC’s
requirement that it act in light of the certification’s conditions,
it has standing to request that we set that requirement aside.

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As we have explained, where a party has “go[ne] directly
to FERC and present[ed] evidence of [section 401] waiver,”
FERC’s decision “declin[ing] to find waiver” is itself the injury
the petitioner seeks to redress. Millennium Pipeline Co. v.
Seggos, 860 F.3d 696, 701 (D.C. Cir. 2017) (noting that parties
may “immediately appeal any adverse FERC decision on the
waiver question to this Court” because they would be
“aggrieved” by FERC’s order under section 19(b) of the
Natural Gas Act). A finding of waiver would dissolve
Morrisville’s obligation to produce additional studies and
otherwise comply with the certification’s conditions.
Vermont relies on our decision in Weaver’s Cove Energy,
LLC v. Rhode Island Dep’t of Environmental Management, 524
F.3d 1330 (D.C. Cir. 2008), a case under the Natural Gas Act.
Weaver’s Cove held that the delay of a section 401
certification, on its own, was insufficient for standing on direct
review where the petitioner sued the State agency to obtain
waiver but did not “claim to have been injured by” the delay in
question. Id. at 1333. Instead, we explained, a petitioner would
have to wait until the State issued a final decision on the
certification and then petition the federal agency to recognize
that the decision was void due to waiver. Id. “If the [agency]
disagrees,” we clarified, “then [petitioner] may challenge its
decision in court.” Id.
This is precisely the posture here. That Morrisville
ultimately seeks to challenge a conditional certification, rather
than a certification denial, makes no difference. Ultimately,
where an agency’s order requires the petitioner to act –
especially to take additional action – in light of the
certification’s conditions, its injuries “are directly traceable to
the Commission’s order[]” and will be remedied should this
court reject the Commission’s conclusion that the certification
was not waived. City of Oberlin v. FERC, 937 F.3d 599, 604-05

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(D.C. Cir. 2019); see also Turlock II, 36 F.4th at 1182-83
(without addressing standing, reviewing FERC order declining
to find section 401 waiver). For this reason, we conclude that
Morrisville has standing to challenge FERC’s order.
C. Vermont Did Not Waive Its Section 401 Certification
Authority
In Hoopa Valley, we held that a State waives its section 401
certification authority when, “pursuant to an agreement
between the State and applicant, an applicant repeatedly
withdraws-and-resubmits its request for water quality
certification” for longer than the statutory permissible period
of one year. 913 F.3d at 1103, 1105. The question before us is
whether Morrisville withdrew and resubmitted its application
“pursuant to an agreement” with Vermont. Id. at 1103. We
agree with the Commission that the record contains no
evidence of such an agreement, and affirm the Commission’s
conclusion that Vermont did not waive its section 401
authority. See 16 U.S.C. § 825l(b); Xcel Energy Servs. Inc. v.
FERC, 41 F.4th 548, 557 (D.C. Cir. 2022). We thus hold that
where a party unilaterally withdraws and resubmits its
certification application, those actions outside of the State’s
control do not waive its statutory authority.
Hoopa Valley was “a very narrow decision flowing from a
fairly egregious set of facts.” N.C. Dep’t of Env’t Quality, 3
F.4th at 669. The record in this case is quite different. First,
Hoopa Valley involved a written agreement between two States
and an applicant with the express intent of “circumvent[ing]”
section 401’s one-year limitations period in connection with
the partial relicensing of a dam. 913 F.3d at 1104. Second,
pursuant to this agreement, the applicant there withdrew and
resubmitted the same certification request “for more than a
decade” to reset the statutory period. Id.; see also Turlock II,

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36 F.4th at 1183 (distinguishing Hoopa Valley as “a case in
which ‘the state agencies and the license applicant entered into
a written agreement . . . to take no action at all on the
applicant’s § 401 certification request’” (quoting N.C. Dep’t of
Env’t Quality, 3 F.4th at 669)).
Hoopa Valley therefore did not address a scenario where
an applicant might “withdr[aw] its request and submit[] a
wholly new one in its place,” and declined to determine what
makes a new request sufficiently different so that it can
permissibly restart the clock. Hoopa Valley, 913 F.3d at 1104;
see also Turlock II, 36 F.4th at 1183. Because FERC did not
base its decision on this distinction, and because we can easily
conclude that there was no agreement with the State agency in
this case, we also have no occasion to reach this question here.
Entergy Ark., LLC v. FERC, 40 F.4th 689, 700 n.5 (D.C. Cir.
2022) (“[A] court’s review of an agency order is limited to the
grounds upon which the agency itself based its action.”).
Morrisville has indeed provided evidence of its need for
additional time so that it could address Vermont’s requests for
supplemental information and to negotiate with the State in
order to obtain more favorable certification conditions. But it
puts forth no evidence of any mutual agreement, contractual or
functional, to circumvent the statutory deadline and delay the
certification process. See Placer Cnty., 169 FERC ¶ 61,046, at
PP 23-24 (applying Hoopa Valley and finding waiver where the
parties reached an unwritten, functional agreement to delay the
certification process).
As the Commission observed below, evidence of the
State’s decision to delay was central to our holding in Hoopa
Valley. See Hoopa Valley, 913 F.3d at 1104 (noting that
Congress sought to “curb a state’s ‘dalliance or unreasonable
delay,’” by enacting the one-year limitation (quoting 115

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C ONG. R EC . 9264 (1969))). Here, however, it was Morrisville
who sought to buy itself more time and who stood to benefit
from the delay, not the State agency. See Turlock II, 36 F.4th
at 1183 n.6. Both withdrawals and resubmissions here came at
Morrisville’s request, first to afford the State agency time to
review the revised proposal it produced ten months after its
initial submission, and then so that Morrisville could have
additional time to, inter alia, provide an analysis to its own
trustees. Vermont also only reluctantly agreed to Morrisville’s
second request after it made clear that the extension was
conditional on a firm timeline for the completion of
Morrisville’s revisions.
Even if the first extension request was induced by advice
from the State that the best course of action might be to
withdraw and resubmit, Morrisville does not offer evidence
that the State’s motivation behind this advice was to give itself
more time or to delay the certification process. Moreover, the
record amply supports FERC’s conclusion that the State
permitted Morrisville’s withdrawal and resubmission as an
alternative to either denying its request for certification without
prejudice or granting it subject to conditions that Morrisville
hoped to avoid. This hardly suggests that the State was engaged
in a scheme to “circumvent” the statutory deadline. Hoopa
Valley, 913 F.3d at 1104.
This is not enough to establish section 401 waiver. Where
an applicant unilaterally withdraws and resubmits its
application because it needs more time to provide the
information the State agency requires, such withdrawal and
resubmission does not occur pursuant to an agreement with the
State solely because the State allows the applicant to do so. See
Cal. State Water, 43 F.4th at 935; KEI (Maine) Power Mgmt.
(III), 173 FERC ¶ 61,069, at P 42 (noting that where a
withdrawal and refiling was prompted by the individual

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applicant’s desire to “avoid receiving a certification with
conditions to which it objected and . . . to allow it to negotiate
further to achieve an outcome to its liking,” such conduct
“cannot be blamed on the state”).
Section 401 penalizes States that “fail[] or refuse[] to act on
a request for certification” within one year. 33 U.S.C.
§ 1341(a); see also Alcoa Power, 643 F.3d at 972 (“[T]he
purpose of the waiver provision is to prevent a State from
indefinitely delaying a federal licensing proceeding by failing
to issue a timely water quality certification under Section
401.”). But rather than engaging in “dalliance” or “delay,”
Hoopa Valley, 913 F.3d at 1104, Vermont had already
publicized its concerns with the project’s relicensing. Nothing
in the record indicates that it needed more time to issue a
certification that imposed conditions to which it had already
alluded. That Vermont generously agreed to discuss necessary
revisions to the project to help Morrisville avoid these
conditions does not indicate its “fail[ure] or refus[al] to act”
under the statute. 33 U.S.C. § 1341(a); see N.C. Dep’t of Env’t
Quality, 3 F.4th at 669 (finding no section 401 waiver where
“there was no idleness on the part of [the State agency],” whose
staff had “met and corresponded frequently” with the applicant,
including advising applicant on how to avoid certain
conditions, which constituted “significant actions, . . . all taken
less than a year after the certification request was filed”).
Unfortunately for Morrisville, its efforts proved fruitless
here. But this does not allow it to now characterize its unilateral
withdrawals and resubmissions as a coordinated effort with the
State. Such “gamesmanship” by licensees in which they seek
to buy themselves more time to negotiate and to avoid a
certification denial, and then later allege that by agreeing to
their own requests the State has waived its statutory authority,
would not be consistent with the statute or with our holding in

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Hoopa Valley. Turlock II, 36 F.4th at 1184. Absent evidence of
the State’s mutual agreement with the applicant to frustrate the
statutory scheme, “states’ ‘rights and responsibilities to ensure
compliance with their own water-quality standards are too
important to be so easily stripped away.’” Cal. State Water, 43
F.4th at 936 (quoting N.C. Dep’t of Env’t Quality, 3 F.4th at
675).
Evidence of mutual agreement with the State was lacking
here. Grasping at straws in attempts to prove such coordination
existed, Morrisville alleges that Vermont’s accession to its
requests is itself an agreement, akin to scuba diving “with a
buddy” or with flying with a co-pilot. Reply Br. for Pet’r 17.
Obviously, Morrisville could not withdraw and resubmit its
requests without informing Vermont it was doing so. That
Vermont was aware of Morrisville’s decision, or even that it
later informed the Commission of the withdrawal, does not
make Vermont an accomplice or part of a scheme. Similarly,
email signoffs from Vermont thanking Morrisville for its
“cooperation” did not compel FERC to find such an agreement,
Br. for Pet’r 17, especially where this was the signoff the State
used from the start of the parties’ interactions, before any
alleged coordination could have taken place.
The Commission thus properly concluded that Morrisville
acted unilaterally and out of its own self-interest to obtain more
favorable conditions, rather than in coordination with the State.
This finding is consistent with agency precedent. Compare
Placer Cnty., 169 FERC ¶ 61,046, at PP 5, 24 (finding waiver
where the State agency “actively participated” in the
withdrawal-and-resubmission scheme, such as by “directly
requesting the withdrawal and refiling”), with KEI (Maine)
Power Mgmt. (III), 173 FERC ¶ 61,069 (finding no waiver
where the applicant unilaterally withdrew its application to buy
itself more time to negotiate with the State).

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III. CONCLUSION
For the reasons explained above, we deny the petitions for
review.
So ordered.

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