CWA 401 certification
85 FR 42210
07/13/2020
Update Type
Final Rules

EPA updated and clarified substantive and procedural requirements for water quality certification under §401 of the CWA.

Volume
50
Issue
9
Update Volume
50
Update Issue
22
Jumping Through Hoopa: Complicating the Clean Water Act for the States
Author
James M. McElfish, Rick Glick, and Sharon White
Author Bios (long)

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.

Date
June 2020
Volume
50
Issue
6
Page
10441
Type
Dialogue
Summary

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.

Nebraska: Clean Water Act (CWA)
October 2018
Volume
48
Issue
12
Update Volume
48
Update Issue
29

The Nebraska Environmental Quality Council proposed amendments to Rules and Regulations on 401(1)(A) Certification. The proposed amendments would, among other things, make public notice requirements consistent with federal notice requirements, and update, simplify, and modernize duplicative language. Hearings will be held November 15, 2018, and November 16, 2018. Comments are due November 14, 2018. See https://www.nebraska.gov/nesos/rules-and-regs/regtrack/proposals/1903.p….