Turlock Irrigation District v. FERC, 36 F.4th 1179

Two hydroelectric projects (Don Pedro and La Grange) on California’s Tuolumne River are owned by Turlock and Modesto Irrigation Districts; relicensing and licensing applications were filed with FERC beginning in 2017.
The Districts submitted Clean Water Act §401 certification requests to the California State Water Resources Control Board on January 26, 2018; the Board denied those requests "without prejudice" after 363 days citing incomplete NEPA/CEQA information.
The Districts resubmitted in April 2019 (denied again after 364 days), sent a third request in July 2020, and filed with FERC in October 2020 seeking a declaratory order that the State had waived its §401 authority.
The Districts later withdrew their cert applications; in January 2021 the State nevertheless granted certification (after state law changed) imposing roughly 45 conditions. The Districts challenged those conditions in state court.
FERC denied the Districts’ petition for a declaratory order, concluding the State had "acted" when it denied the applications (even "without prejudice") and therefore did not waive its §401 authority. The D.C. Circuit affirmed FERC’s decision.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a State denial "without prejudice" within one year constitutes "action" under CWA §401(a)(1) or is equivalent to inaction/waiver	Districts: Denials "without prejudice" that do not decide the merits are not "action" and thus should be treated as waivers after one year	FERC/State: A denial is an "action" under §401(a)(1); the statute requires only that the State act within one year to avoid waiver	Court: Affirmed FERC; denials without prejudice here were state action and did not effect a waiver
Whether Hoopa Valley controls and requires finding waiver despite these denials	Districts: Hoopa supports finding waiver where State effectively delayed licensing	FERC/State: Hoopa involved an agreement to refrain from acting (withdraw/resubmit scheme) and is distinguishable	Court: Distinguished Hoopa; no coordinated withdrawal scheme here, requests were incomplete and State reasonably acted
Whether treating such denials as "action" invites indefinite delay/gamesmanship	Districts: Rule permits repeated "without prejudice" denials to evade §401’s one-year limit	FERC/State: Adopting Districts’ rule would force States to grant certifications without sufficient info; courts can police abuses	Court: Accepted FERC’s pragmatic judgment; left policing of abusive repeated denials to future fact-specific review

Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) (held coordinated withdraw-and-resubmit scheme was inaction leading to waiver)
N.Y. State Dep’t of Env’t Conservation v. FERC, 884 F.3d 450 (2d Cir. 2018) (interpreting what constitutes state "action" under §401)
N.Y. State Dep’t of Env’t Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021) (further §401 analysis on state action and waiver)
N.C. Dep’t of Env’t Quality v. FERC, 3 F.4th 655 (4th Cir. 2021) (discussing Hoopa as involving an agreement to take no action)
Allegheny Def. Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) (addressing agency action/inaction under a different statutory deadline)
Turlock Irrigation Dist. v. FERC, 786 F.3d 18 (D.C. Cir. 2015) (prior decision upholding FERC’s jurisdiction over La Grange project)