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

June 2020

Citation: 50 ELR 10441

Issue: 6

Author: James M. McElfish, Rick Glick, and Sharon White

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. However, states are required to set conditions within one year or they forgo their ability to do so. In practice, the one-year review is difficult for states to meet and led to a common practice known as “withdraw and resubmit” in which states could reset the clock. But in Hoopa Valley Tribe v. Federal Energy Regulatory Comm’n, the D.C. Circuit unanimously struck down this practice. Because the U.S. Supreme Court denied review, states now have one calendar year to issue their water quality certifications and decide if any conditions should be included. On March 17, 2020, the Environmental Law Institute hosted an expert panel that explored the ramifications of the Hoopa decision on states and §401 permit applicants. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.

James M. McElfish (moderator) is Director of the Sustainable Use of Land Program and Senior Attorney at the Environmental Law Institute. Rick Glick is a Partner at Davis Wright Tremaine LLP. Sharon White is Of Counsel at Van Ness Feldman LLP.

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