Jumping through Hoopa: Complicating the Clean Water Act for the States

March 17, 2020 12:00 pm — 1:30 pm

An ELI Member Webinar

Section 401 certification and permit conditioning under the Clean Water Act (CWA) is one of the most significant tools for states to influence federally permitted activities involving discharges into navigable waters, and it is not subject to review by the federal permitting authority. However, states are required to set any conditions on the permit within one year or else they forgo their ability to add conditions to these permits.

In practice, this one-year review is difficult for states to meet. This has led to a common practice known as “withdraw and resubmit” in which states could reset the clock for the one-year review period by requesting an applicant to refile. That is, until the Supreme Court denied review of the case after the US Court of Appeals for the DC Circuit unanimously struck down this practice in Hoopa Valley Tribe v. FERC. Now states have one calendar year to issue their water quality certifications and decide if any conditions should be included.

Who will benefit most from the Hoopa decision, and who will bear its costs? How might this ruling restrict the authority of the states to influence federally permitted activities through permit conditioning? What actions are states taking to meet this one-year requirement? Our panelists explored the ramifications of the Hoopa decision on the states and Section 401 permit applicants.

James M. McElfish, Director of Sustainable Use of Land Program and Senior Attorney, Environmental Law Institute, Moderator
Rick Glick, Partner, Davis Wright Tremaine LLP
Sharon White, Of Counsel, Van Ness Feldman, LLP

Water Act Rule Poses Challenges for States (ELI Vibrant Environment Blog, Jan. 27, 2020, Kihslinger/McElfish)

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