March 23, 2020

Clean Water Act Section 401: Hoopa Valley Tribe and Emerging Developments

Charles R. Sensiba, Misha Tseytlin, and Morgan M. Gerard

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019). The Court’s denial of certiorari means that the D.C. Circuit’s opinion—holding that states have an “absolute maximum” of one year to render a decision on requests for water quality certification under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341—will stand. The disposition of the case means that the D.C. Circuit’s holding is now final and unappealable and is expected to continue to have far-reaching effects for federal licensing and permitting activities that require state water quality certification under CWA section 401.

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