Whether California 'fail[ed] or refuse[d] to act' on petitioners' requests within one year as Section 401 requires

QUESTION PRESENTED Under the Federal Power Act, the Federal Energy Regulatory Commission (“FERC”) has exclusive authority to issue licenses for the construction, operation and maintenance of hydroelectric projects on federal jurisdictional waters. 16 U.S.C. § 797(e). If a proposed license “may result in any discharge into the navigable waters” of the United States, the Clean Water Act requires the project applicant to provide FERC with “a certification from the State in which the discharge originates.” 33 U.S.C. § 1341(a)(1). The Clean Water Act further 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.” Id. The Ninth Circuit found that in California, it is generally “not feasible for a Section 401 certification to issue within one year,” and therefore “a practice has developed over the last several decades—in California and in other States—whereby project applicants withdraw their requests for certification before the end of the one-year review period and resubmit them as new requests” to give “the state more time to decide whether and under what conditions it will grant the certification request.” App. 8a. The question presented is: Whether California “fail[ed] or refuse[d] to act” on petitioners’ requests within one year as Section 401 requires by establishing the withdraw-andrefile practice to give the State “more time to decide” project applicants’ certification requests.