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Environmental & Natural Resources

Panelist, "Jumping Through Hoopa: Complicating the Clean Water Act for States," Webinar, Environmental Law Institute

03.17.20
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Section 401 certification and permit conditioning under the Clean Water Act 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 must set any conditions on the permit within one year or else they forgo their ability to add conditions to these permits.

Because this one-year review is difficult for states to meet, states would often reset the clock by requesting an applicant to refile—a practice known as "withdraw and resubmit." But the U.S. Court of Appeals for the D.C. Circuit struck down this practice in Hoopa Valley Tribe v. FERC, and the U.S. Supreme Court denied review. As a result, states have just one calendar year to issue their water quality certifications and decide if any conditions should be included.

ELI and leading experts such as partner Rick Glick explored the ramifications of the Hoopa decision on states and §401 permit applicants in this panel discussion. Topics included:

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

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