[00:00:01] Speaker 00:
Tase number 23-1075, Brookfield White Pine Hydro LLC petitioner versus Federal Energy Regulatory Commission.

[00:00:09] Speaker 00:
Mr. Warner for the petitioner, Ms.

[00:00:12] Speaker 00:
Gall for the respondents, Mr. Martin for the intervener, State of Maine.

[00:00:18] Speaker 05:
Good morning.

[00:00:19] Speaker 07:
Good morning.

[00:00:20] Speaker 07:
My name is Matt Warner.

[00:00:21] Speaker 07:
I'm here for Brookfield White Pine Hydro.

[00:00:24] Speaker 07:
I guess this case will swing us back to something like a local discussion from the global.

[00:00:33] Speaker 07:
I wanted to start with the observation today that this case can really turn on whether the word and means and an EPA regulation.

[00:00:42] Speaker 07:
The rule we're talking about here, generally speaking, requires a state to include three things when it denies an application for water quality certification.

[00:00:53] Speaker 07:
Those things are the specific water quality requirements that were not met, generally speaking, why those were not met.

[00:00:59] Speaker 07:
And if the state thinks it needs more information, like Maine does here, it needs to identify what information

[00:01:07] Speaker 07:
could be provided that would allow those requirements to be met if the applicant chooses to apply again in the future.

[00:01:13] Speaker 05:
That's not how it's phrased.

[00:01:14] Speaker 05:
Let me ask you something.

[00:01:16] Speaker 05:
Your arguments about and I'm going to ask you about will not comply.

[00:01:20] Speaker 05:
Does will not comply mean that they must show that it will not comply?

[00:01:25] Speaker 07:
Will not comply

[00:01:30] Speaker 07:
Let me take a step back.

[00:01:31] Speaker 07:
Will not comply does mean they need to show that it will not comply, but that there are a couple of sensible ways to understand what that could mean.

[00:01:39] Speaker 05:
I don't want to get sensible.

[00:01:40] Speaker 05:
I want to get a plain text.

[00:01:42] Speaker 05:
So they have to be able, how can someone, if they don't have enough information to decide whether something will comply or not, then be able to explain how something definitively will not comply?

[00:01:55] Speaker 07:
Yes, well that's,

[00:01:58] Speaker 05:
happens to be the way water quality certification works your honor is that it's I don't think so I think the way it works is that normally states fine just as it says in roman at three that the company you for example in this case have not shown you haven't shown or assured that the discharge will comply that's very different

[00:02:19] Speaker 05:
saying someone hasn't met their burden of proof to show that it will comply is very different from a state bearing the burden of explaining why it will not comply.

[00:02:30] Speaker 05:
So that's not how water quality works generally.

[00:02:32] Speaker 07:
Well, the state can meet that burden by simply identifying the requirements that are not met that with the information.

[00:02:39] Speaker 05:
They don't have information yet to know whether they're met.

[00:02:43] Speaker 07:
Well, if I could bring it to the specifics of this case, then I can speak in the abstract again.

[00:02:47] Speaker 07:
In this case, we're talking about a 6,000 page application for water quality certification, one that was more comprehensive than a prior application that the state had denied in great detail over 54 pages, stating specifically which requirements were and were not met by that prior application.

[00:03:04] Speaker 07:
Here, the state had more information and yet decided.

[00:03:07] Speaker 05:
The draft denial?

[00:03:08] Speaker 05:
Is that the draft denial?

[00:03:09] Speaker 07:
This was the draft denial in 2021.

[00:03:10] Speaker 05:
OK, so they didn't actually.

[00:03:11] Speaker 05:
Lock it down.

[00:03:12] Speaker 07:
Yeah, it was just correct.

[00:03:14] Speaker 07:
It wasn't a final order, but it was the state saying final findings there.

[00:03:17] Speaker 07:
So, okay, there were findings over there.

[00:03:20] Speaker 07:
Correct.

[00:03:20] Speaker 07:
There were not findings locked down, but there were findings that the state made over the whole point of drafts is that we can think about it some more.

[00:03:29] Speaker 07:
Yes.

[00:03:31] Speaker 05:
And so you had a long application, correct?

[00:03:37] Speaker 07:
A long application with great detail.

[00:03:38] Speaker 07:
This is not my I guess my point is that information

[00:03:41] Speaker 05:
Right, my point is that this tell in part because you just dropped a whole new whole new information on us just a couple weeks ago that we haven't yet had time to analyze.

[00:03:51] Speaker 05:
How are they supposed to say you just dropped this new information on us?

[00:03:55] Speaker 05:
They called a late stage submission that we have not yet had time to analyze.

[00:04:00] Speaker 05:
How are they supposed to in one breath say that and say we can tell

[00:04:06] Speaker 05:
that you haven't given, that you're without more information, it will not comply.

[00:04:13] Speaker 05:
How are they supposed to do that?

[00:04:15] Speaker 07:
In this case, the state could have issued an order that met the requirements of this regulation by saying there are federal processes ongoing things that set in this order.

[00:04:25] Speaker 07:
And so we don't have enough information yet until those processes conclude.

[00:04:29] Speaker 04:
But is that is the not enough information only the federal processes or what you all have not provided.

[00:04:39] Speaker 07:
We're obviously not challenging the legality of the state saying we don't have enough information premise for the denial.

[00:04:46] Speaker 07:
We are challenging, though, the state's ability to do so without providing the information required by this rule in addition.

[00:04:51] Speaker 07:
And I'm suggesting that that was perfectly possible here because the state could have said, we have this 6,000 pages from you.

[00:04:58] Speaker 07:
As we decided last year with a less comprehensive application, with the information you've provided to date, you don't mean this requirement, this requirement, and this requirement.

[00:05:08] Speaker 07:
under state law.

[00:05:12] Speaker 05:
here are the reasons why we haven't had time to analyze this new information they said that we haven't you this was late stage submission we haven't had time to analyze that yet how are they supposed to then say nonetheless we can definitively assure you that it i get maybe they can point to the requirements but for purposes of roman at two how can they say

[00:05:39] Speaker 05:
colorably and with integrity that it will not comply if they haven't had enough time yet to analyze.

[00:05:45] Speaker 07:
I think there are two points.

[00:05:47] Speaker 07:
One is the supplement we're talking about here, the quote late stage submission was a fairly brief, it was a 60 page supplement.

[00:05:55] Speaker 07:
It sped up the timing of certain measures being implemented by White Pine, but even setting aside.

[00:06:00] Speaker 05:
They said on J-294, these have yet to be analyzed.

[00:06:04] Speaker 07:
Correct.

[00:06:05] Speaker 07:
And so even saying that aside that the state didn't have time, assuming the state didn't have time to analyze.

[00:06:11] Speaker 07:
Right.

[00:06:11] Speaker 07:
Then the state still could have said, but the 6,000 page application we do have in front of us doesn't meet these requirements.

[00:06:17] Speaker 07:
You need to reapply when you have more information, including the supplement that we didn't have time to analyze.

[00:06:22] Speaker 07:
That would have been acceptable.

[00:06:24] Speaker 05:
Oh, so they were supposed to...

[00:06:27] Speaker 05:
What you say they waived here was just their ability to respond to the initial application, not the application adjusted by the September submission.

[00:06:37] Speaker 05:
Well, the applicant just said, if they waived anything, they just waived a response to your initial, would you say 6,000 page submission?

[00:06:47] Speaker 05:
But they have not yet, and you don't dispute, but they have not yet waived or have properly not yet analyzed

[00:06:57] Speaker 05:
that 6,000 page as supplemented by your September submission.

[00:07:00] Speaker 07:
I don't dispute the state's ability to deny for lack of information and perhaps to do so on the basis that information has been late filed.

[00:07:07] Speaker 07:
However, what the state waived here was its ability to issue water quality certification at all for that project.

[00:07:13] Speaker 07:
The reason being the whole project.

[00:07:14] Speaker 05:
I'm very confused.

[00:07:15] Speaker 05:
I'm very confused.

[00:07:17] Speaker 05:
What were they supposed to respond to in compliance as you read this rule?

[00:07:23] Speaker 05:
Was it the problems with the 6,000 page initial submission?

[00:07:29] Speaker 05:
But of course, it was perfectly fine for them to say we haven't had time to analyze the supplement.

[00:07:34] Speaker 05:
And so they were supposed to talk about how a no longer relevant submission didn't comply.

[00:07:41] Speaker 05:
That's what you say they had to do and they didn't do it.

[00:07:44] Speaker 05:
They waived their ability to respond to the no longer relevant submission because you yourself have changed it.

[00:07:55] Speaker 05:
Is that your position?

[00:07:56] Speaker 07:
Well, Your Honor, we certainly don't care.

[00:07:58] Speaker 05:
I'm telling you, hi, just I'm describing.

[00:08:00] Speaker 05:
What's wrong with my description?

[00:08:02] Speaker 07:
Well, several things, Your Honor.

[00:08:04] Speaker 07:
First of all, it's not that the initial submission was no longer relevant.

[00:08:08] Speaker 07:
That was the real licensing proposal the state had to consider.

[00:08:11] Speaker 07:
This late stage submission made minor tweaks.

[00:08:16] Speaker 05:
They came after they had given you a draft and they were informed by at least conversations you were having with the Marine Service on their biological opinion.

[00:08:28] Speaker 05:
I don't think these were just commas.

[00:08:32] Speaker 05:
Did it change anything about how the hydropower program would operate?

[00:08:37] Speaker 07:
Delay stage emissions sped up the certain fish passage measures that were already proposed.

[00:08:41] Speaker 05:
Is that relevant to the safety of fish going through?

[00:08:46] Speaker 07:
It seems to be yes, but the point was relevant to the concerns that had been flagged.

[00:08:52] Speaker 07:
Yes, we're not disputed.

[00:08:54] Speaker 05:
It wasn't an immaterial.

[00:08:55] Speaker 05:
It was material changes.

[00:08:57] Speaker 07:
Sure, and we're not disputing the materiality of this late stage submission.

[00:09:02] Speaker 07:
The state's denial by not providing the details required by one and two of this regulation left Brookfield without any idea what it needs to do to actually obtain certification whenever it applies it.

[00:09:16] Speaker 05:
You knew they still hadn't considered your submission as amended by the late submission.

[00:09:23] Speaker 05:
You knew they hadn't even considered that, so you might as well wait for them to consider that.

[00:09:28] Speaker 05:
You knew that was still pending before them.

[00:09:31] Speaker 07:
Correct.

[00:09:31] Speaker 07:
But the purpose of these rules is to tell the applicant what it needs to do to reapply and obtain certification, what information it can provide, how it can adjust its proposal.

[00:09:39] Speaker 07:
And the state was obligated to consider this.

[00:09:42] Speaker 05:
They could have said that's late.

[00:09:45] Speaker 05:
So we're not able to consider that.

[00:09:49] Speaker 05:
But thank you for giving us now an updated submission.

[00:09:54] Speaker 05:
Is the clock reset?

[00:09:56] Speaker 07:
If the state truly couldn't analyze these minor tweaks in the supplement.

[00:10:01] Speaker 05:
Okay, it can't be both minor tweaks and material changes for purposes of salmon preservation.

[00:10:05] Speaker 05:
You can't have it both ways.

[00:10:07] Speaker 05:
Correct.

[00:10:07] Speaker 05:
All right.

[00:10:07] Speaker 05:
And you said you made changes for that in your view would promote the salmon preservation concerns that they had.

[00:10:13] Speaker 07:
Correct.

[00:10:14] Speaker 07:
These are adjustments to the time.

[00:10:15] Speaker 05:
So if the state truly... You don't dispute them when they say they had yet to be analyzed by the department, right?

[00:10:22] Speaker 05:
You're not impugning their good faith.

[00:10:24] Speaker 07:
I'm not disputing the department's good faith, but I am disputing that they're...

[00:10:29] Speaker 07:
The department's view and first view that department was not required to say what about the applicant's proposal it had before it for the full year provided under the Clean Water Act.

[00:10:37] Speaker 07:
What about that proposal failed to comply with state water quality requirements.

[00:10:41] Speaker 05:
Where does the rule say that when the application has been I'll just call it amended maybe you have a more a different term but has been amended updated supplemented materially changed.

[00:10:54] Speaker 05:
that there's something in this regulation that requires them to go through these steps as to the old now displaced application.

[00:11:06] Speaker 07:
Well, the application wasn't old and displaced, Your Honor.

[00:11:08] Speaker 07:
And this supplement to this application.

[00:11:10] Speaker 05:
It's been displaced now by the one that is, we have version, we have A, application A. And application B is that application, but changed, materially changed by the September submission.

[00:11:23] Speaker 05:
And I think you've agreed that they can't be deemed to have waived their ability to respond to that, what I'm going to call submission B,

[00:11:33] Speaker 05:
which is A plus the material changes from September, they can't have waived that, their ability to respond to that, which must mean it's still pending before them.

[00:11:44] Speaker 05:
But your view is we can lob all this stuff in late and then we still expect you to answer this thing and spend your resources analyzing systems and aspects of its operation that are moot.

[00:11:58] Speaker 05:
Is that your position?

[00:12:00] Speaker 07:
Our position is that it's consistent with

[00:12:03] Speaker 07:
It's routine in water quality certification and for re licensing of hydropower projects in general, and especially on rivers where there are endangered species that consultations are ongoing throughout the licensing process and the result of those consultations is that proposals do.

[00:12:18] Speaker 07:
change and evolve over time.

[00:12:20] Speaker 07:
So it's not unusual for over the course of a year, a state has to consider an application for water quality certification that there would be supplements filed and that the applicant Brookfield here would inform the state.

[00:12:31] Speaker 04:
Do you have an answer to Jasmine Lett's questions with respect to the clock?

[00:12:34] Speaker 04:
You know restarting so how does that fit into what you've just stated if it's not going to be unusual for all of the supplements along the way or for you to get a denial without prejudice and then withdraw your application and then supplemented or re file and when does the Clark restart.

[00:12:52] Speaker 07:
Well, the state has a year to act on an application for water quality certification.

[00:12:56] Speaker 07:
It had that application here.

[00:12:57] Speaker 07:
Perhaps, I don't think there's been any case law on this point, but perhaps the state is permitted to disregard regards supplements like the one filed in September by Brookfield here, but it still had to act on the application itself within a year.

[00:13:08] Speaker 05:
I mean, that makes no sense.

[00:13:10] Speaker 05:
You yourself have identified whether it's Maine's concerns or you're concerned about the fisheries service.

[00:13:17] Speaker 05:
You guys have already decided we're not going with plan A.

[00:13:21] Speaker 05:
We want to go forward with Plan B. Lots is the same, but as to the salmon concerns, material changes have been made.

[00:13:31] Speaker 05:
We wish to go forward with Plan B.

[00:13:35] Speaker 05:
But I've taken your position to be, but this regulation, and this has nothing to do with the word and as far as I'm concerned, requires states with their limited resources to first spend a whole lot of time telling you what was wrong with plan A, including probably the parts you've already changed.

[00:13:55] Speaker 05:
That's what they did.

[00:13:57] Speaker 05:
That's the problem.

[00:13:59] Speaker 05:
And by not doing that,

[00:14:03] Speaker 05:
They don't have any authority to act on Plan B. That's your position.

[00:14:10] Speaker 07:
Yes, my position is that the state needed to identify what was wrong with Plan A. That's important.

[00:14:17] Speaker 05:
Including the parts that were moved.

[00:14:18] Speaker 07:
Well, so plan B is a material change and slightly more protective for Atlantic salmon.

[00:14:23] Speaker 07:
It's not true at all that had the state provided the information required by one and two here, that wouldn't be helpful given the supplement to the proposal.

[00:14:32] Speaker 04:
Just quickly, could requiring

[00:14:36] Speaker 04:
What the state thinks you should do, essentially just revert you back to what the specifications are, like almost an application process.

[00:14:45] Speaker 04:
You know, just the various specifications that you're putting forth the application for in the first place.

[00:14:51] Speaker 04:
Like they're deeming it insufficient information.

[00:14:53] Speaker 04:
You know what the specifications were required.

[00:14:56] Speaker 04:
You don't have some of those there, so why would the state do anything but just revert back to what the specifications were?

[00:15:03] Speaker 07:
The problem, Judge Childs, is that we have no idea what the specifications are here because the state's position on that has evolved over the past four years, especially when we're talking about fish passage.

[00:15:13] Speaker 07:
This leaves us with the real-world problem that we simply don't know what the state is requiring now, a problem that would have been solved had the information in one and two been provided.

[00:15:22] Speaker 07:
Now, specifically, the draft denial, which we spoke about earlier,

[00:15:26] Speaker 07:
suggested that the state would impose a 99% passage rate for Atlantic salmon up and down the river past the Shomet Dam.

[00:15:34] Speaker 07:
Following that draft denial, the state filed documents with FERC noting that it instead wanted something called a nature-like fishway, which routes a portion of the river around the dam.

[00:15:45] Speaker 07:
In earlier filings, several years ago, the state called for outright dam removal as the only way to satisfy state water quality standards.

[00:15:52] Speaker 07:
The result is that

[00:15:54] Speaker 07:
because the state's position has been constantly evolving on what's required for fish passage, we simply don't know what's required here.

[00:16:00] Speaker 05:
What did your material changes in September propose?

[00:16:02] Speaker 05:
Which of those options or was it a different option altogether?

[00:16:05] Speaker 07:
Our material changes in September were the result of consultations with it's a different option altogether or result of consultations with the federal resource agencies and FERC and landed on a fish passage standard that has been

[00:16:19] Speaker 07:
endorsed by the federal agency through a biological opinion last year and draft EIS.

[00:16:23] Speaker 07:
Recently, these were entirely different from what the state has said it will propose.

[00:16:26] Speaker 07:
The state has also at times suggested it will follow the lead of the federal agencies, but we simply don't know which of these the state's going to land on.

[00:16:33] Speaker 05:
So the fact of the matter is that you didn't give them time to evaluate your new proposal.

[00:16:37] Speaker 05:
but you still think they should go back and evaluate your original proposal.

[00:16:41] Speaker 05:
How does that help you since that's no longer what you're planning to do?

[00:16:44] Speaker 05:
Because even whatever they want, you've still got to make the fisheries service and the FERC, and at least in the EIS, content with what you're doing as well.

[00:16:54] Speaker 05:
I don't understand how them saying something you're no longer planning to do shouldn't be done.

[00:17:02] Speaker 07:
information because you already decided we're not doing that whether it's from their input fisheries service input Burke input all of the above you're not doing it everything in the original proposal Brookfield is planning to do just a few things or they're doing a little sooner than they said they would so the the material the adjustments was

[00:17:20] Speaker 05:
and that you adopted an option that had yet to be discussed because it was something that you got the idea, I guess, from the fisheries service, because we didn't have the EIS was further down the road at that point.

[00:17:31] Speaker 05:
And so you sort of did door number four.

[00:17:35] Speaker 07:
Correct, Your Honor.

[00:17:36] Speaker 07:
And if the state had, let's just say, if this denial had provided the information we wanted, it would have said denied for lack of sufficient information.

[00:17:46] Speaker 07:
It presumably would have mentioned the supplement if the state didn't have time to consider it.

[00:17:51] Speaker 07:
And then it would have said.

[00:17:52] Speaker 05:
It did say.

[00:17:53] Speaker 07:
Correct.

[00:17:54] Speaker 07:
And then it would have said failed to meet this particular wildlife or habitat standard under state law as the draft denial did in 2021.

[00:18:01] Speaker 07:
And it would have said because.

[00:18:02] Speaker 05:
So you already knew that.

[00:18:03] Speaker 05:
You didn't need that information.

[00:18:05] Speaker 07:
Well, as I just explained, we didn't know exactly what would be required, because the state has changed its position repeatedly.

[00:18:11] Speaker 05:
They don't have to tell you exactly what's required.

[00:18:12] Speaker 05:
They just have to tell you why you're not meeting a requirement.

[00:18:16] Speaker 05:
Too many fish are dying.

[00:18:18] Speaker 05:
C, and then cite the specific requirement.

[00:18:22] Speaker 07:
Correct.

[00:18:22] Speaker 07:
And had the state provide us with the- Too many fish would die.

[00:18:26] Speaker 05:
Well, I'm gonna- For ruminant two?

[00:18:30] Speaker 07:
Yes, I don't think the state was required to provide with

[00:18:34] Speaker 07:
exact specificity, its requirements, but presumably the state could have.

[00:18:38] Speaker 05:
They just have to set a requirement.

[00:18:41] Speaker 05:
I guess there's a requirement in law about protecting the salmon or something or fish protection and why it won't comply.

[00:18:51] Speaker 07:
And then had the state here identified the which of the three or four state water quality requirements related that they're on fish passage of Atlantic salmon in particular, which of those were still at issue with this updated and more elaborate proposal that was more protective of fish and it had.

[00:19:07] Speaker 05:
No, no, no, wait, sorry.

[00:19:09] Speaker 05:
Are you seeing the they also had to go on?

[00:19:11] Speaker 05:
Did you just say they had to go on and say why they still aren't met by your updated proposal?

[00:19:16] Speaker 07:
No, forgive me this.

[00:19:17] Speaker 07:
I'm speaking.

[00:19:17] Speaker 05:
We're not saying that.

[00:19:18] Speaker 07:
The re-licensing proposal that the state had a year to act on, even setting the supplement aside, was more elaborate than the proposal that the state had previously, I guess, issued the draft denial.

[00:19:29] Speaker 05:
Right, right.

[00:19:31] Speaker 05:
And then you did another one.

[00:19:32] Speaker 07:
And so the state could have said, so the state could have said, these

[00:19:37] Speaker 07:
could have said this one two three or four state water quality requirements related to fish passage are it are still not met by this proposal with the information provided because 95 95 percent of salmon need to get past the dam or because we think in nature like fishways required to meet state requirements that would be ideal for you but i don't know where they have to do that they just have to say why it will not comply and i thought you just agreed if they say too many salmon will die that would suffice

[00:20:02] Speaker 07:
I think even providing that information would have been helpful, because as it currently stands, we simply don't know if the proposal that the state had in front of it will meet state requirements or not, or if the proposal that is being considered by FERC.

[00:20:21] Speaker 05:
This is what I keep struggling with.

[00:20:23] Speaker 05:
States have very limited resources, often far less than the federal government.

[00:20:30] Speaker 05:
And it's no longer your proposal.

[00:20:34] Speaker 05:
It's no longer the proposal you're putting forth.

[00:20:37] Speaker 05:
You've changed it in September.

[00:20:39] Speaker 07:
Well, practically speaking, it gets us 99% of the way there.

[00:20:43] Speaker 07:
These minor material adjustments to the timing of this.

[00:20:47] Speaker 05:
Minor in material, I'm sorry.

[00:20:48] Speaker 05:
Yeah.

[00:20:49] Speaker 05:
Not working.

[00:20:50] Speaker 05:
Because you said it was a whole new option that they hadn't even considered.

[00:20:54] Speaker 05:
But they had been, I guess, endorsed by, I don't know if this is true, just assumed for these purposes, by the fisheries service.

[00:21:01] Speaker 05:
I don't think it's fair to call that minor material.

[00:21:04] Speaker 07:
I guess two points.

[00:21:06] Speaker 07:
One, it would still be helpful and as this rule was intended to give Brookfield the information it needs to know if it needs to adjust its proposal at all to meet state standards or if it can rest on the proposal before the federal agencies.

[00:21:21] Speaker 05:
That's what analysis of your September submission would certainly be helpful for.

[00:21:27] Speaker 07:
Well, if the if the earlier submission from the prior October had the state had said this does meet state standards.

[00:21:36] Speaker 05:
With the exception of this one, she knew from the draft denial that you were probably in trouble.

[00:21:41] Speaker 05:
She wanted them to say definitively.

[00:21:43] Speaker 05:
We meant what we said in the draft denial.

[00:21:45] Speaker 07:
Well, unfortunately, we don't know from the draft denial because the broader political context here led the state to also suggest that it would.

[00:21:53] Speaker 07:
abandoned the 99% standard and followed the lead of the federal resource agencies, something we don't know if that's still true or not, because this information wasn't provided here.

[00:22:04] Speaker 03:
On the question about changes, can you give me any general guidance on the question when the submission of a supplemental, of a supplement

[00:22:21] Speaker 03:
will or will not restart the clock.

[00:22:25] Speaker 03:
Because, I mean, it just seems really obvious.

[00:22:27] Speaker 03:
If you're just dotting an I or crossing a T, fine.

[00:22:32] Speaker 03:
Maybe the original deadline holds.

[00:22:35] Speaker 03:
But at some point, the supplement will be so substantial as to just overwhelm the original submission.

[00:22:43] Speaker 03:
And it just can't be that nothing changes at that point.

[00:22:47] Speaker 03:
So how do we distinguish those two?

[00:22:49] Speaker 07:
Yeah, so when when I mean, Brookfield's view remains and this is what it said when it filed the supplement with the state that it was.

[00:22:57] Speaker 07:
That it was not material, I'm taking it was material as a.

[00:23:00] Speaker 07:
I'm taking it for the sake of argument here, but Brookfield did say when it filed this with the state that it was a non-material supplement that made minor adjustments to the proposal.

[00:23:09] Speaker 07:
The state then found in its order a decision that is not challenged here today, which is why I'm taking this materiality for the sake of argument here, that it was material and significant.

[00:23:20] Speaker 07:
That's something Brookfield disagreed with and could have

[00:23:24] Speaker 07:
You know, that's something that would have to be determined on a case-by-case basis, presumably, at some point.

[00:23:28] Speaker 07:
It doesn't have to be determined in this case.

[00:23:30] Speaker 05:
You agree it's material and significant.

[00:23:32] Speaker 07:
I agree it doesn't have to be determined in this case, and I don't believe this would be the clear.

[00:23:36] Speaker 03:
I'm sorry.

[00:23:36] Speaker 03:
If we're taking the case on the assumption that the changes are material, why wouldn't they have started a new clock?

[00:23:47] Speaker 07:
Because this regulation, either way, requires

[00:23:51] Speaker 07:
The state to act on the application had before it for a year.

[00:23:57] Speaker 03:
Is I guess I'm we're judging likewise them in a few materially amended it.

[00:24:04] Speaker 05:
We have more questions.

[00:24:05] Speaker 03:
I just one more so put aside the.

[00:24:09] Speaker 03:
Put aside the amendment.

[00:24:10] Speaker 03:
Let's just talk about what the reg means.

[00:24:13] Speaker 03:
So suppose if we if we read.

[00:24:16] Speaker 03:
The and.

[00:24:20] Speaker 03:
sort of have to read, um, we sort of have to read will not comply as something like, um, you haven't met your burden of proving will comply, right?

[00:24:36] Speaker 03:
Um, if we do that, maybe they have to show maybe the denial has to show all three.

[00:24:45] Speaker 03:
But I mean, what's the point that that

[00:24:48] Speaker 03:
they're just gonna say, here's a list of all of our water quality standards that we care about.

[00:24:57] Speaker 03:
And the reason why you haven't met your burden of proving compliance is we haven't had time to assess this.

[00:25:09] Speaker 03:
And that's our, you know,

[00:25:12] Speaker 03:
list out all the code provisions for Roman at one.

[00:25:15] Speaker 03:
And that's the explanation for Roman at two.

[00:25:17] Speaker 03:
And there we are.

[00:25:18] Speaker 03:
And it just seems like a kind of pointless exercise.

[00:25:23] Speaker 07:
And you're discussing when the denial is due to insufficient information as here.

[00:25:27] Speaker 03:
Yeah.

[00:25:28] Speaker 07:
Yeah.

[00:25:28] Speaker 07:
So I think in that case, the language in section three does a bit of work, too, and requiring the state to describe the specific data information needed to assure that the discharge will come

[00:25:40] Speaker 07:
will comply with water quality requirements.

[00:25:41] Speaker 07:
When you combine those three pieces of information, you must know what information you need.

[00:25:46] Speaker 07:
You'll know which requirements you failed to meet and why, even if they didn't meet your burden.

[00:25:51] Speaker 07:
But then you also know what specific data or information the state needs so you can meet that burden.

[00:25:56] Speaker 03:
I guess I understand there's a question about how much information remnant three requires.

[00:26:04] Speaker 03:
I guess I'm more focused on the question of what work

[00:26:09] Speaker 03:
Roman, that's one and two we're doing in a kind of case like this.

[00:26:15] Speaker 07:
Well, I think in a case like this, we'd at least know which specific water quality requirements we're talking about.

[00:26:20] Speaker 07:
It would give us at least some idea as these rules were intended to ensure.

[00:26:25] Speaker 03:
I'm just going to list all of them and say we don't know whether or not there's a problem because we haven't had time to assess your submission.

[00:26:37] Speaker 07:
If that were true and the state truly didn't know whether any requirement were met, then it could do so.

[00:26:43] Speaker 07:
However, that's not the case here.

[00:26:46] Speaker 07:
Something we know, again, from the draft denial where multiple water quality requirements were met and some weren't.

[00:26:51] Speaker 07:
And so knowing what specific requirements were at issue would at least give the applicant some information to form a new application.

[00:26:58] Speaker 05:
Say we know that.

[00:26:59] Speaker 05:
So are you agreeing that the draft denial is technically incorporated in Maine's decision?

[00:27:06] Speaker 05:
You said we know that from the draft denial.

[00:27:07] Speaker 07:
No, Your Honor.

[00:27:08] Speaker 07:
What we know from... I don't agree it was incorporated because it was simply referenced in a footnote as a background fact.

[00:27:16] Speaker 05:
Then we don't know that for purposes of the man's decision here.

[00:27:19] Speaker 07:
We know that the state could take an earlier less comprehensive version of the same relicensing proposal and go point by point and identify which requirements were met and which were not.

[00:27:28] Speaker 07:
So there's no reason it could not have done the same here.

[00:27:30] Speaker 05:
Is that required by three?

[00:27:33] Speaker 05:
Just by ruminant three.

[00:27:35] Speaker 05:
You haven't challenged the compliance with ruminant three, right?

[00:27:39] Speaker 07:
No, we do.

[00:27:39] Speaker 07:
We do challenge the compliance with three as well.

[00:27:42] Speaker 07:
The state said that it would benefit from the conclusion of the federal processes.

[00:27:46] Speaker 07:
That's not the same as identifying specific data and information that Brookfield should provide to assure that its discharge will comply.

[00:27:56] Speaker 07:
From this project will comply with its state requirements.

[00:27:58] Speaker 05:
We're fighting about the word and which wouldn't matter if

[00:28:02] Speaker 05:
you're challenging Roman at three.

[00:28:04] Speaker 07:
Yeah, I think that the denial plainly doesn't include the information required by one and two on its face.

[00:28:11] Speaker 07:
The easiest way to overturn the decision of FERC is to decide that and means and, and one and two aren't there.

[00:28:19] Speaker 07:
We also think that FERC's decision is unsupported by evidence in the record that three is satisfied.

[00:28:25] Speaker 05:
Any other questions?

[00:28:27] Speaker 05:
Thank you very much.

[00:28:28] Speaker 05:
Thank you.

[00:28:59] Speaker 02:
Good morning, Your Honors.

[00:29:00] Speaker 02:
Angela Gao for the Commission.

[00:29:01] Speaker 02:
I'd like to pick up on a question that Judge Millett asked first, which is, if this regulation says will not comply, how can a state that doesn't have enough information to make a determination show that the project will not comply or identify which requirements that it will not comply with?

[00:29:24] Speaker 02:
That's exactly on the point.

[00:29:27] Speaker 02:
It doesn't make sense to read

[00:29:29] Speaker 02:
this regulation in the way that Brookfield does in the context of this regulation and what a state must do.

[00:29:38] Speaker 02:
when it makes a certification decision.

[00:29:40] Speaker 02:
It's consistent with also how the EPA itself reads this regulation.

[00:29:46] Speaker 02:
As we discuss on pages 36 through 37 of our brief, EPA can serve as the certifying authority for waters that are not subject to any state's authority.

[00:29:57] Speaker 02:
And in that role, EPA has to follow the same regulations that states do, including 121.7E.

[00:30:03] Speaker 02:
And when EPA issues denials due to insufficient

[00:30:08] Speaker 02:
information, it only makes the findings required by subsection three and not those in one and two.

[00:30:14] Speaker 02:
And it explains that the missing information needed to assure compliance under subsection three is also necessary to identify which water quality requirements will not be met and explain why that is.

[00:30:29] Speaker 03:
The regulation doesn't make a whole lot of sense.

[00:30:34] Speaker 03:
I mean, you have to do one of two creative, you have to impose one of two creative readings on it, as I see it.

[00:30:44] Speaker 03:
You either have to do what you all would like to do, which is say that something in the form of one, two, and three means one and two or three, which is pretty weird.

[00:31:02] Speaker 03:
Or you have to read will not comply to mean hasn't been proven to comply, which is also a little weird.

[00:31:13] Speaker 03:
Am I thinking about the choice the right way?

[00:31:15] Speaker 03:
And why is your spin on this less implausible than the other one?

[00:31:23] Speaker 02:
I generally agree that it is a choice between those two readings that you've put forth.

[00:31:29] Speaker 02:
And I would say our position is more plausible because it's also supported by the tax, the syntax, in the context of the regulation, as well as the statutory purpose of Section 401 and its waiver provisions.

[00:31:43] Speaker 05:
It's also, I guess, the problem with will not comply is that

[00:31:47] Speaker 05:
Romanet 3 uses the exact language that they omitted in 1 and 2.

[00:31:51] Speaker 05:
It uses that they assure that the discharge will comply.

[00:31:56] Speaker 05:
Does that reverse burden things?

[00:31:59] Speaker 05:
So not only would we have to read will not comply to mean what Romanet 3 says, we'd have to defy that they know how to say it when they want it.

[00:32:09] Speaker 05:
I mean, it seems to have been a deliberate choice.

[00:32:13] Speaker 05:
even harder to say that will not comply means you haven't assured that the discharge will comply.

[00:32:18] Speaker 02:
I agree with that your honor and I'd also point out that whereas you know subsections one and two they reference each other.

[00:32:27] Speaker 02:
Roman at two, it says will not comply with the identified water quality requirements and those were identified in subsection one.

[00:32:36] Speaker 02:
But in contrast, if you look at Roman at three, it says will not comply with water quality requirements and it refers there to the requirements in the general sense and not to any specific water quality requirements that Roman at one and two would require.

[00:32:51] Speaker 02:
Also, I point out to your point, Judge Katz is that the syntax here supports the reading of this regulation to address two separate lists of criteria.

[00:33:02] Speaker 02:
Subsection three is set apart from the others by its own conditional clause.

[00:33:07] Speaker 02:
It says, if the denial is due to insufficient information, the denial must describe.

[00:33:12] Speaker 02:
And that indicates that it refers to a different type of denial than what came before it.

[00:33:18] Speaker 02:
Also, it's drafted subsection three as a complete sentence that stands on its own and can be fully understood by itself, unlike ruminates one and two, which are both dependent clauses.

[00:33:30] Speaker 03:
Which are sentence fragments.

[00:33:32] Speaker 02:
I'm sorry.

[00:33:34] Speaker 03:
Your sentence fragments.

[00:33:35] Speaker 02:
Yes, I got correct.

[00:33:39] Speaker 02:
Turning to the contacts, it simply doesn't make sense to require the findings in one and two when a state doesn't have enough information to make those findings.

[00:33:50] Speaker 02:
And as your honors have have.

[00:33:54] Speaker 02:
honed in on, the key language here is will not comply from Romanets 1 and 2.

[00:34:00] Speaker 02:
The regulation, as we understand it, only requires identifying the standards with which the project will not comply and not those that it might not comply with.

[00:34:10] Speaker 02:
To conclude otherwise would require the state to make two conflicting findings, it has to conclude that the project will not comply with requirements

[00:34:19] Speaker 02:
under subsections 1 and 2, while simultaneously concluding that it lacks enough information to draw that conclusion in the first place.

[00:34:28] Speaker 04:
But the Clean Water Act, as its general premise says, meet all three requirements.

[00:34:35] Speaker 04:
So by us just focusing on three,

[00:34:38] Speaker 04:
Just give me your general thoughts about a remand to require that there be specific information as to why will not comply with one and ruminates one and two.

[00:34:50] Speaker 02:
Well, I think if the court were to remand this to allow further explanation on points one and two, I think Judge Katz's point that this is essentially then a pointless exercise.

[00:35:05] Speaker 02:
of listing every plausible water quality requirement that the state has in simply saying

[00:35:12] Speaker 02:
Well, we didn't have enough time or information to evaluate the substance of your proposal.

[00:35:17] Speaker 02:
And therefore, we can't reach a system of determination.

[00:35:20] Speaker 02:
If the point of this regulation is, as Brookfield says, to provide the applicant with notice of what it must do, what information has it been provided if we did that to simply list out requirements and say that there was not enough information to make that determination?

[00:35:42] Speaker 05:
You mentioned sufficient time.

[00:35:47] Speaker 05:
I know it's not a FERC regulation, but does FERC have a view or experience with understanding when there's a new submission just a couple weeks before, three weeks before the deadline here?

[00:36:02] Speaker 05:
And it's, for our purposes, deemed to be material and significant changes.

[00:36:11] Speaker 05:
Restart the clock?

[00:36:12] Speaker 05:
I'm not even sure which submission we're acting on, or FERC was acting on, or what they're talking about here.

[00:36:22] Speaker 05:
It's very confusing.

[00:36:23] Speaker 05:
But if it restarted the clock, then all of this is sort of a pointless exercise, because who cares if they waived their ability to act on a moot proposal, or a supplanted or replaced proposal?

[00:36:39] Speaker 02:
My understanding is that there's no automatic way that the clock resets, even when there's a very late stage in material modification to the application.

[00:36:50] Speaker 02:
But the case law from this court and others confirmed that what Maine did here is exactly appropriate for the circumstances.

[00:36:58] Speaker 02:
It issues a denial without prejudice that's not on the merits and says, you're free to resubmit your application when you have the information that we need to make a merits determination.

[00:37:08] Speaker 02:
And that's in, for example, Turlock, where this court recognized that when environmental review is still ongoing, as it is here, a state that denies without prejudice because it doesn't yet have the information that it needs necessarily acts within the meaning of Section 401 and doesn't trigger waiver.

[00:37:27] Speaker 05:
And doesn't have sufficient information can be a product both of insufficient time

[00:37:33] Speaker 05:
And obviously content of submission.

[00:37:36] Speaker 05:
Insufficient time can itself be a reason they as yet have insufficient information.

[00:37:41] Speaker 02:
That's my understanding of what insufficient information would encompass.

[00:37:46] Speaker 02:
And I believe.

[00:37:48] Speaker 02:
You mean that?

[00:37:49] Speaker 02:
Yes, correct.

[00:37:56] Speaker 02:
I'd also like to address a question from Judge Childs.

[00:38:00] Speaker 02:
I believe you asked, is it just information from these federal processes that the state needed, or also was there information that Brookfield needed to provide?

[00:38:10] Speaker 02:
And my understanding that it's both.

[00:38:12] Speaker 02:
It's not just the biological opinion and environmental impact statement, but also additional details about Brookfield's proposal

[00:38:20] Speaker 02:
that the state needed to make a determination.

[00:38:24] Speaker 02:
It's worth noting that after Brookfield supplemented in September, both the Commission and the Fisheries Service needed to request additional information from Brookfield to fill in the details of their supplemental filings.

[00:38:37] Speaker 02:
And one example of that is on JA 304 through 308.

[00:38:45] Speaker 05:
So after Maine issued its decision and then Birkfield sought FERC's review of that decision, there's no indication that Maine participated in that proceeding.

[00:39:01] Speaker 05:
Is that right?

[00:39:01] Speaker 05:
Is that how they normally work?

[00:39:04] Speaker 05:
Maine doesn't seem to have been a party to the proceeding before FERC.

[00:39:07] Speaker 05:
I don't see that.

[00:39:08] Speaker 05:
Usually, FERC always describes who argued what, unless I'm missing it.

[00:39:14] Speaker 05:
main participate or so they have a chance or is this sort of you take the order and it just goes to work and frequently challenging party deal with it.

[00:39:23] Speaker 02:
I believe I main didn't participate in the sense of that it filed some sort of

[00:39:34] Speaker 02:
you know, rehearing requests to the notice that the commission issued confirming that it's denial complies with the requirements of 121.7e.

[00:39:47] Speaker 02:
But it did submit in December of 2023 the copy of the draft denial and in the cover letter,

[00:39:59] Speaker 02:
Transmitting the 2021 draft allow explained why it believed its denial met the requirements of 12170.

[00:40:11] Speaker 02:
But I do want to also make this point that you touched on a point that this entire process is kind of unusual.

[00:40:17] Speaker 02:
Before the 2020 rule, the commission didn't have this formal role in verifying the content of a state's denial or certification decision.

[00:40:29] Speaker 02:
So this is all sort of new territory for the commission as well as to what do we need to include in the notice?

[00:40:36] Speaker 02:
And then how do we interpret this regulation as to what needs to be within the decision?

[00:40:42] Speaker 05:
I'm just trying to figure out because Brookfield argues that if it's right,

[00:40:50] Speaker 05:
a student's reading of the regulation and the content of Maine's order, which really doesn't, I mean, it says here's our draft, FERC said it said here's our draft denial and that would meet one and two, but for the most part, if their position is that they didn't comply with one and two, which is at least a difficult decision, that the consequence is waiver of their ability

[00:41:21] Speaker 05:
tact at all on this project, other than informal input in the federal system, or maybe filing a brief with FERC at some point.

[00:41:29] Speaker 05:
But they've lost the sort of distinct statutory role.

[00:41:33] Speaker 05:
And I'm just trying to figure out where my assumption, I guess they'll tell me if I'm wrong, is that given both the text of the statute and our decision in Turlock,

[00:41:43] Speaker 05:
that Maine would have some arguments as to whether that should be the consequence, you know, whether to the extent the regulation provides that consequence, it's consistent with the statutory scheme, either generally or particularly as applied in this situation when a whole new material insignificant submission is submitted at the last minutes that it doesn't have time to review.

[00:42:06] Speaker 05:
But it sounds like when they went defer to sort of see if they check the boxes on the regulation,

[00:42:14] Speaker 05:
The state doesn't show up as a party there.

[00:42:15] Speaker 05:
They sort of turn in their record of decision, maybe.

[00:42:19] Speaker 05:
Is there any point in the process when that argument would be made?

[00:42:27] Speaker 05:
When the agency or courts would be able to assess that question?

[00:42:33] Speaker 05:
We don't really have briefing on that remedial question here, which seems to me, as you said, pointing out Turlock.

[00:42:41] Speaker 05:
And then the oddities of this case with the material and significant change just a few weeks before the deadline, a substantial question that I assume Maine would want to contest.

[00:42:53] Speaker 02:
I can't speak to that.

[00:42:56] Speaker 02:
I don't know for certain whether there is some sort of formal way that a state could submit briefing on their position as to whether their denial was sufficient.

[00:43:09] Speaker 02:
Or what the remedy

[00:43:12] Speaker 02:
or if the remedy should be waiver, but- Or remand to explain yourself better like we often do it.

[00:43:21] Speaker 02:
Yes, I'm not aware of a case specifically in which a state certification decision has been remanded back to the state for additional explanation.

[00:43:33] Speaker 02:
But I don't think that the regulation

[00:43:42] Speaker 05:
If we were to agree with Birkfield, would we still then remand to Burke to address appropriate remedy?

[00:43:48] Speaker 05:
Or does that just get decided here?

[00:43:53] Speaker 02:
If this case were remanded to the commission, the commission could... On the grounds that Birkfield was right, obviously, we would remand if we agreed with Burke.

[00:44:05] Speaker 02:
The commission could provide further explanation as to why the findings in one and two are met.

[00:44:12] Speaker 02:
That's not what the appropriate remedy should be.

[00:44:15] Speaker 02:
The appropriate remedy, I'm not certain, Your Honor.

[00:44:19] Speaker 02:
I believe that if the finding on remand is that the subsections one and two aren't met, then our interpretation of the regulation is incorrect.

[00:44:32] Speaker 02:
then the consequence would be waiver.

[00:44:34] Speaker 05:
Well, only if that's just a regulatory, that's in the regulation.

[00:44:40] Speaker 05:
There's nothing in the statute that says waiver in this context because the statute isn't clear as to when new submissions count and restart the clock.

[00:44:48] Speaker 05:
It just says you have to act, all the statutes that you have to act upon.

[00:44:52] Speaker 05:
And I think at the mains position, we and Turlock said, you have acted upon it.

[00:44:58] Speaker 05:
Yes.

[00:44:59] Speaker 05:
And so I'm just trying to figure out procedurally where a dispute about the consequence, if they were to be found to violate, would be sorted out.

[00:45:09] Speaker 05:
And would they need to raise that before FERC first?

[00:45:13] Speaker 05:
I'm not certain, Your Honor.

[00:45:14] Speaker 05:
I apologize.

[00:45:15] Speaker 05:
Any other questions?

[00:45:18] Speaker 05:
All right.

[00:45:18] Speaker 05:
Thank you very much.

[00:45:46] Speaker 01:
Good morning, and may it please the court, Robert Martin.

[00:45:48] Speaker 05:
I think it's actually afternoon.

[00:45:50] Speaker 05:
Is it afternoon?

[00:45:51] Speaker 05:
The clock says noon.

[00:45:52] Speaker 01:
We're very close, right on the cusp.

[00:45:53] Speaker 01:
Good morning or good afternoon.

[00:45:56] Speaker 01:
May it please the court, Robert Martin, Assistant Attorney General, on behalf of the state of Maine.

[00:46:01] Speaker 01:
This case has serious implications for Maine.

[00:46:04] Speaker 01:
At risk here is a waiver of Maine's authority to impose mandatory conditions in a decades long license to protect state water quality.

[00:46:14] Speaker 01:
Today, as Brookfield's

[00:46:16] Speaker 01:
FERC license is continually renewed on an annual basis.

[00:46:21] Speaker 01:
Brookfield is free to submit a new application for water quality certification to the department, giving the department the opportunity it's entitled to have under the Clean Water Act to evaluate its 11th hour submission from Brookfield on the last application and having the benefit of the critical information from federal agencies it's now becoming available.

[00:46:41] Speaker 04:
Brookfield also indicates that this Romanet 3

[00:46:46] Speaker 04:
when you have the broad term of insufficient information could just lead to delays by the state as well, particularly when you don't give the reason for indicating that it doesn't comply with any regulation.

[00:47:00] Speaker 01:
Well, we think here the delay concern.

[00:47:05] Speaker 01:
is minimal.

[00:47:07] Speaker 01:
In its denial without prejudice, the state didn't just identify some information, vague information that's coming available at some point in time in the future.

[00:47:16] Speaker 01:
It identified specific federal information.

[00:47:19] Speaker 01:
It was absolutely and undisputably relevant to Brookfield's application that it knew from representations from FERC and the fisheries service that would be coming available

[00:47:28] Speaker 04:
It eminently so there was no issue with delay here particular provision case by case basis.

[00:47:34] Speaker 01:
That's right.

[00:47:34] Speaker 01:
That's right, your honor.

[00:47:37] Speaker 05:
They made.

[00:47:37] Speaker 05:
They can answer if you can't but have they, maybe they would have made them to you have they made more changes that you're aware of now that there is a biological opinion at least a draft is out.

[00:47:48] Speaker 01:
If those changes happen, they would have been happening on the FERC docket, not before the state agency.

[00:47:54] Speaker 01:
They currently have no application pending before the state certifying agency, so I'm not aware if they've submitted updates to FERC in that sense.

[00:48:05] Speaker 03:
Did the denial orders rest more on mains being put in an impossible position with this last minute supplement?

[00:48:17] Speaker 03:
Or more on just Maine's view, like, gosh, it would be nice if we could see the biological opinion and all the forthcoming.

[00:48:27] Speaker 01:
Your honor, I think those are equally important grounds.

[00:48:31] Speaker 01:
And standing alone, if you take on both.

[00:48:33] Speaker 01:
Yeah, if you take the federal forthcoming information out of the situation and you just have sort of 11th hour document dump on the department, that would have been a standalone grounds.

[00:48:43] Speaker 01:
you take that out and you just look at the forthcoming federal information that's relevant and specific to concerns that the department had about the pending water quality application.

[00:48:53] Speaker 01:
Um, that's a standalone ground as well.

[00:48:56] Speaker 05:
We don't have to decide whether either of those would be sufficient because they were both relied on.

[00:49:00] Speaker 05:
Here is your position in this case.

[00:49:02] Speaker 05:
That's correct, Your Honor.

[00:49:04] Speaker 05:
Although one could imagine the latter situation is one where the regulation really was trying toe

[00:49:09] Speaker 05:
and get the states going, you know, in the light of fire.

[00:49:12] Speaker 03:
Yeah, the document dump one is more concerning.

[00:49:19] Speaker 01:
That's right, Your Honor.

[00:49:20] Speaker 03:
And while that wasn't in the context of like these reviews are always ongoing, there's always more you might like to assess.

[00:49:28] Speaker 01:
Sure.

[00:49:28] Speaker 01:
And while that wasn't the exact issue that was addressed in this court's Turlock case, that was about forthcoming environmental reviews.

[00:49:37] Speaker 01:
The court did acknowledge the potential slippery slope of always relying on federal information.

[00:49:44] Speaker 01:
We agree that these can be fluid processes.

[00:49:47] Speaker 01:
But here, the likelihood of the state kicking the can down the road on this was minimal, given that we knew, again, the specific timeline, the specific information, and its relevancy to the application.

[00:49:59] Speaker 05:
But if they had made this

[00:50:02] Speaker 05:
September submission, what you all call the late stage submission, if that had been made in six or eight months before.

[00:50:11] Speaker 05:
And so really all you wanted and you'd been able to evaluate it.

[00:50:15] Speaker 05:
But all you wanted was a few alphons.

[00:50:19] Speaker 05:
We'll keep waiting for the government to go, federal government to go first.

[00:50:24] Speaker 05:
You'd be in, you really would be in a weaker position, at least under this regulation, because that seems to be exactly what it wants to say.

[00:50:31] Speaker 05:
You are a state, you have your independent program, your independent interests.

[00:50:36] Speaker 05:
That's what your role is about.

[00:50:40] Speaker 05:
And you need to let us know what the state interests are.

[00:50:43] Speaker 05:
The feds can figure out what their interests are.

[00:50:45] Speaker 05:
but you all need to keep marching and not keep waiting for someone else to go through the door first.

[00:50:51] Speaker 01:
That's true that it is the state's authority that's at issue in this case, but this is somewhat of a unique and specific position that we find ourselves in where the federal agencies are looking exactly at the same thing the state wants to be looking at as well, which is- They're looking under state law, they're looking under federal law, and you are the expert on state law.

[00:51:12] Speaker 01:
That's right.

[00:51:13] Speaker 01:
We do have expertise in state law.

[00:51:15] Speaker 01:
Some of our agencies do.

[00:51:17] Speaker 01:
But also, I mean, the state, it's well within its discretion to make a decision that it can withstand scrutiny in court.

[00:51:27] Speaker 01:
And the state didn't know what this forthcoming information is going to say.

[00:51:31] Speaker 01:
And it may be helpful or it may be hurtful to the state's case.

[00:51:37] Speaker 01:
In this case, it made the decision to wait on those, knowing that it was going to have specific consequences for the fish passage issue, which was the primary issue with Brookfield's application.

[00:51:51] Speaker 05:
Do you have thoughts on?

[00:51:59] Speaker 05:
It just struck me that the remedy, I get the regulation says if you don't

[00:52:06] Speaker 05:
comply with the regulation, a free jot and tittle, you waive, it counts as a statutory waiver.

[00:52:13] Speaker 05:
Is there, maybe Maine agrees with that reading, the regulation says that, I guess you'd have to agree with that, that whether that is lawful under the statute and under our Turlock decision, is there a place where and when

[00:52:32] Speaker 05:
Maybe Maine thinks that's fine.

[00:52:34] Speaker 05:
That is a consequence.

[00:52:34] Speaker 05:
And then I'll be quiet.

[00:52:35] Speaker 05:
But if Maine, that's something Maine would want to contest, certainly on the case, at least in the situation when you have a last minute material and significant submission.

[00:52:46] Speaker 05:
Where and when would you be able to raise that issue?

[00:52:48] Speaker 01:
Sure.

[00:52:48] Speaker 01:
So two points, Your Honor.

[00:52:51] Speaker 01:
One relates to what is allowed by the statute when you look at this particular rule.

[00:52:57] Speaker 01:
Obviously, this rule has been replaced by a new rule.

[00:53:01] Speaker 01:
in full candor, the state of Maine participated with many other states challenging the validity of the 2020 rule and this provision in particular.

[00:53:10] Speaker 01:
That's not at issue in this case.

[00:53:12] Speaker 01:
Again, the 2020 rule has been replaced.

[00:53:16] Speaker 01:
It was dismissed without prejudice to renew challenges should it be revived in the future in the Northern District of California.

[00:53:23] Speaker 01:
So we did challenge the

[00:53:27] Speaker 05:
consistency between an actual application of that regulation.

[00:53:32] Speaker 05:
No one seems to dispute that regulation governs at least the submission.

[00:53:36] Speaker 05:
I'm not sure whichever the submission is this before us that submission.

[00:53:41] Speaker 05:
And so if they're right, regulation prescribes waiver and

[00:53:51] Speaker 05:
I'm trying to figure out, I don't think there's much ambiguity to the regulations consequence, but even the tax and case law of the statute itself, at least in this circuit, just this question arose to me whether in fact that's a remedy that FERC could lawfully, I mean, I guess we remand for them to apply it.

[00:54:18] Speaker 05:
To make a waiver determination.

[00:54:20] Speaker 05:
could seek review of that on the grounds that the waiver is beyond regulatory authority.

[00:54:25] Speaker 05:
Is that the right?

[00:54:26] Speaker 01:
Assuming, again, this is assuming that the court agreed with all of Brookfield's interpretations, what the regulation prescribes in that situation is a waiver of state authority.

[00:54:38] Speaker 01:
And that could be a remand to FERC to make that sort of determination from an order from this court.

[00:54:47] Speaker 01:
What I would

[00:54:50] Speaker 05:
be concerned.

[00:54:53] Speaker 01:
We may renew challenges at that point in time on the remedy.

[00:54:59] Speaker 01:
To the remedy.

[00:55:00] Speaker 05:
I guess maybe you could to the whole regulation.

[00:55:02] Speaker 05:
You're right at that point.

[00:55:03] Speaker 01:
Well, yeah, to the whole regulation.

[00:55:04] Speaker 01:
I think what remedy we would have serious concerns about would be, in some iteration, going to FERC and then coming back to the state, as has been discussed at length here, there is a regulatory

[00:55:18] Speaker 01:
our statutory deadline for the state to act under the Clean Water Act.

[00:55:22] Speaker 01:
And that's one year.

[00:55:23] Speaker 01:
And I would be concerned that any remand that finds its way back to the state would somehow bring up concerns that maybe the state, you know, it's well beyond the state's time to act on this application.

[00:55:35] Speaker 05:
If it goes back to FERC, and we say, and means and.

[00:55:42] Speaker 05:
So figure out whether this complies with the regulation under that rating.

[00:55:46] Speaker 05:
And they look at it and they say, and you all would just have your arguments, but they work with them to say yeah it's it violates the regulation.

[00:55:54] Speaker 05:
Your authority is here by way of your position is you could then.

[00:56:00] Speaker 05:
come to this court to challenge that decision, because I guess you have a laundry list of objections to the regulations.

[00:56:07] Speaker 05:
Sure.

[00:56:08] Speaker 05:
One of which would be that waiver remedy is appropriate.

[00:56:12] Speaker 01:
If it went back to FERC for a waiver determination ordered from this court, we have to look specifically into the law at that point.

[00:56:20] Speaker 01:
But I think that's a remedy that we would consider is whether the appealability of a new FERC order

[00:56:28] Speaker 01:
that would waive man's authority.

[00:56:30] Speaker 05:
And then the question is whether imposing waiver as a regulatory matter was within EPA's statutory authority, given how the statute talks about what acts are required and we addressed in Turlock and that was met here.

[00:56:49] Speaker 01:
Right, I think you're correct that that characterization is correct.

[00:56:53] Speaker 01:
And again, for all the reasons my colleague mentioned, we don't think the court should do that here.

[00:56:59] Speaker 04:
But getting back to the waiver process generally, if you were to review the application and you felt like you had enough information to act on it, however you still wanted the biological opinion or the EIS statement, how does that process work with respect to informing Brookfield

[00:57:17] Speaker 04:
But yet, is it approved potentially on the condition of those other things?

[00:57:23] Speaker 01:
So under the Clean Water Act, there are certain actions that the state can take on a water quality certification application.

[00:57:33] Speaker 01:
all of which constitute an act within its one-year deadline to avoid waiver.

[00:57:39] Speaker 01:
It can approve an application, it can approve with conditions, it can deny an application, or it could deny without prejudice.

[00:57:45] Speaker 01:
And it took the last choice here, which was to deny without prejudice, waiting for more information.

[00:57:51] Speaker 01:
To approve with conditions here wouldn't make sense because you need to know what those can, the agency would need the information before it to make a decision about what conditions might attach to that application.

[00:58:02] Speaker 01:
It couldn't include conditions in an application based on information that doesn't exist yet.

[00:58:07] Speaker 04:
You kept referring to 11th hour dump, essentially.

[00:58:10] Speaker 04:
So is that the rationale or reason for why insufficient is you don't have enough time or are you looking at it substantively and believe there's something?

[00:58:19] Speaker 01:
Yeah, that's a good question, Your Honor.

[00:58:20] Speaker 01:
So we think that the insufficient time is the same as essentially tantamount

[00:58:27] Speaker 01:
Insufficient information if you don't have enough time to digest the information, then you might as well not you might as well not have it so that's that's the bucket that we put the last minute you say they're the same gent but then why not at least state that as your rationale because to me time and substance is two different things.

[00:58:46] Speaker 01:
I mean I think the the state did in its denial without prejudice say it doesn't have enough time to process this this information and just as a matter of process before the state agency when they get critical information on an application they reach out to their expert agencies, they reach out to

[00:59:05] Speaker 01:
you know, stakeholders to let them know they've received updates and they want to hear what folks have to say about this sort of thing so they can act on the best available information.

[00:59:12] Speaker 04:
But if you say that it's based on insufficient time to process, then you don't have to go then into these other portions of the regulation that state what would be needed, etc.

[00:59:25] Speaker 01:
I think insufficient.

[00:59:27] Speaker 01:
I'm not sure if they said the word insufficient time in the denial without prejudice, but that to be late late stage filing has yet to be analyzed right so that I think that can be read as insufficient time.

[00:59:38] Speaker 01:
Thank you.

[00:59:38] Speaker 01:
Thank you, your honor for that to process the information.

[00:59:41] Speaker 04:
But my point is that you wouldn't then need to say what was needed, because you're using insufficient time as your basis.

[00:59:47] Speaker 01:
I mean, you're right, Your Honor.

[00:59:49] Speaker 01:
That may have been a way that the state could have framed its denial.

[00:59:53] Speaker 01:
But again, in the interest of transparency, it wanted to let the public and the applicant know what was happening.

[01:00:03] Speaker 05:
They had.

[01:00:05] Speaker 05:
Let's just assume their September submission, what you all call the late stage one, had been filed in sufficient time from Maine's perspective to analyze it.

[01:00:13] Speaker 05:
And you said, it looks great to us.

[01:00:19] Speaker 05:
We're signing off on it.

[01:00:21] Speaker 05:
And then this is just a process question.

[01:00:24] Speaker 05:
And then three or six months later, a biological opinion comes out that says this is disastrous for salmon.

[01:00:32] Speaker 05:
Maine doesn't understand how this technology works.

[01:00:34] Speaker 05:
Here's why.

[01:00:35] Speaker 05:
It's disasters for salmon.

[01:00:38] Speaker 05:
Is Maine's role done, or if they have to completely change what they're doing to address biological opinion?

[01:00:47] Speaker 05:
Does it then come back to Maine again to get approved, or is it Maine's out and then you just have input maybe with the feds or something, but your job is done?

[01:00:54] Speaker 01:
We think the state's role in the federal

[01:00:58] Speaker 01:
permitting process under the Clean Water Act is clear.

[01:01:01] Speaker 01:
So Maine would have the authority there to impose conditions based on what it thought would adequately meet state water quality standards.

[01:01:10] Speaker 01:
I'm not sure if that means, and maybe this is really the crux of your question, if the federal agencies want to go further, what the state would do then.

[01:01:22] Speaker 01:
It seems like that would be an issue for

[01:01:26] Speaker 05:
Your role, your formal role, certification role would be done with.

[01:01:33] Speaker 01:
I think that's right.

[01:01:34] Speaker 01:
If the federal standards wanted to be more stringent than state water quality standards, I don't think that's something the state would have an issue with.

[01:01:44] Speaker 05:
Some states would.

[01:01:46] Speaker 01:
State of Maine.

[01:01:46] Speaker 05:
Any other questions?

[01:01:48] Speaker 05:
All right.

[01:01:48] Speaker 05:
Thank you very much.

[01:01:49] Speaker 05:
Thank you, Your Honors.

[01:01:51] Speaker 05:
Mr. Warner, we'll give you three minutes.

[01:01:59] Speaker 07:
Thank you, Your Honor.

[01:02:00] Speaker 07:
I should be clear to start that Brookfield has been consistent all along that this, quote, late stage submission was consistent with its broader relicensing proposal and was immaterial when I was attempting to accept for the sake of argument this materiality issue.

[01:02:18] Speaker 07:
But that's certainly not something Brookfield is ready to concede.

[01:02:20] Speaker 05:
You said you could have challenged it.

[01:02:21] Speaker 05:
You haven't challenged it, and you were accepting for purposes of this case that it was material and significant.

[01:02:25] Speaker 05:
That's what you told us.

[01:02:27] Speaker 05:
Was that inaccurate?

[01:02:28] Speaker 07:
No, excuse me, I was accepting for the purposes of an exchange with with you that my point was that your challenges in state court to their decision.

[01:02:39] Speaker 07:
So correct that that challenge was on.

[01:02:42] Speaker 07:
was unrelated to the materiality of the late-stage submission.

[01:02:46] Speaker 07:
I guess my point here is that, setting aside the issue of the late-stage submission, the state had an application for water quality certification.

[01:02:53] Speaker 07:
And under the Clean Water Act, it has to act on that application within a year.

[01:02:57] Speaker 07:
There's nothing in the Clean Water Act that says, unless an applicant provides a supplement to the state or updates the state on its ongoing consultations with federal agencies, the state just has to act on that application.

[01:03:08] Speaker 07:
Now, presumably, if

[01:03:10] Speaker 07:
Brookfield or any other applicant wanted to amend his proposal in a material way or withdraw his proposal or file a whole new proposal, it would withdraw the existing proposal rather than asking the state to go through the process of rejecting something that no longer or acting on something that no longer mattered.

[01:03:29] Speaker 07:
Here, however, that is not what happened because Brookfield's relicensing proposal had been before the state for a year and Brookfield had no intention of withdrawing it was

[01:03:39] Speaker 07:
and had simply attempted to update the state on ongoing consultations with the federal agencies.

[01:03:46] Speaker 07:
Again, something that's fairly routine.

[01:03:49] Speaker 07:
The state was obligated under the Clean Water Act to act on the application before it, however it viewed the supplement within that one year deadline.

[01:03:59] Speaker 05:
In terms of... Chris has a quick question.

[01:04:02] Speaker 05:
Of course.

[01:04:02] Speaker 05:
Now that at least the biological opinion is out, and I don't know if you've done anything in response to the draft EIS from FERC, have you all made more changes in your proposal in response to, obviously not submitted to Maine, but more changes?

[01:04:22] Speaker 07:
No, Your Honor.

[01:04:22] Speaker 07:
The proposal is

[01:04:24] Speaker 07:
Well, Brookfield's proposal is the same.

[01:04:27] Speaker 05:
As a September submission.

[01:04:29] Speaker 07:
As a September submission, my understanding is that the biological FERC environmental impact statement, the draft last month, would add a few additional minor measures.

[01:04:38] Speaker 05:
But you haven't changed your submission from September.

[01:04:40] Speaker 07:
That's correct, Your Honor.

[01:04:43] Speaker 07:
And so I guess I also wanted to just quickly speak to syntax here.

[01:04:50] Speaker 07:
My portion of today off by emphasizing whether or asking whether and means and is that there's only one way for doing syntax that and can be an end here.

[01:04:59] Speaker 07:
And it's if we read element one to be saying that when an applicant fails to meet its burden, this means the discharge will not comply.

[01:05:07] Speaker 07:
Our position is just that that's a perfectly sensible way to read the first element.

[01:05:11] Speaker 07:
The only way that gives allows and to.

[01:05:13] Speaker 07:
carry its plain meaning and the only way that's consistent with the intent of the EPA when drafting these rules as explained in the introduction to the rules.

[01:05:24] Speaker 05:
Any questions?

[01:05:25] Speaker 05:
Thank you very much.

[01:05:26] Speaker 05:
Thank you.