There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) established a bright-line standard that a 401 certification must be issued or denied within one year of receipt of application, or the certification opportunity is waived. States cannot engage in actions to extend this deadline by requiring an applicant to withdraw and refile their application or by finding an application incomplete. This bright-line test was reinforced by the Second Circuit’s more recent decision in New York State Department of Environmental Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). This interpretation was also codified in EPA’s 2020 Clean Water Act Section 401 Certification Rule. See 85 Fed. Reg. 42210 (July 13, 2020). However, on July 2, the Fourth Circuit offered a different interpretation of Section 401 in its decision in N.C. Department of Environmental Quality v. FERC, No. 20-1655 (McMahan Hydro).
Continue reading The Fourth Circuit Weighs In on the Interpretation of CWA Section 401

On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado v. Semonite, Civil Action No. 18-cv-03258 (D. Colo. Mar. 31, 2021), the court ruled that it lacked jurisdiction over an appeal of a U.S. Army Corps of Engineers (USACE) Clean Water Act (CWA) Section 404 permit and the associated U.S. Fish and Wildlife Service (USFWS) Endangered Species Act (ESA) biological opinion since these are actions “inhere[d] in the controversy” related to the FERC license.
Continue reading District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment

On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule).

Section 401 of the CWA provides a cooperative federalism framework where states and authorized Tribes can issue a water quality certification that places conditions on a proposed project or action requiring a federal permit. Under President Trump, EPA revised the regulations implementing Section 401, to among other reasons, create greater regulatory certainty in the process, reaffirm one year means one year or less as authorized by statute, address the scope of review by clarifying conditioning authority is focused on water quality effects of the discharge as opposed to the entire activity, and modernize the application process. While some states have intervened in support of EPA to defend the Final Rule (including Texas and West Virginia), other states (including New York and California) and environmental groups have challenged the Final Rule. Courts are currently holding these proceedings in abeyance in light of the change in administration. It is not clear how the reconsideration notice will affect these abeyances, but the courts may simply continue to hold the cases in abeyance pending a replacement rule being issued.
Continue reading EPA Announces Reconsideration and Potential Revision of the Clean Water Act Section 401 Final Rule