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Ninth Circuit Finds No Waiver of State Water Board Authority

On August 5, the U.S. Court of Appeals for the Ninth Circuit overruled several orders by the Federal Energy Regulatory Commission (FERC) and held that the California State Water Resources Control Board (SWRCB) did not waive...more

Supreme Court Re-Instates the Clean Water Act Section 401 Certification Rule

Today, in a 5-4 decision, the Supreme Court re-instated the U.S. Environmental Protection Agency’s (EPA’s) 2020 Clean Water Act (CWA) section 401 rule (Certification Rule). The Court stayed a decision by the U.S. District...more

Clean Water Act Section 401 Certification Rule Litigation Continues

As the U.S. Environmental Protection Agency (EPA) prepares its Clean Water Act (CWA) Section 401 rule proposal, litigation regarding the 2020 Trump-era rule (Certification Rule) continues. Currently, the issue of whether to...more

Court Decision to Vacate, Remand State Water Quality 401 Certification Rule

On October 21, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (EPA) 2020 Clean Water Act Section 401 final rule (Certification Rule)....more

The Fourth Circuit Weighs in on the Interpretation of CWA Section 401

There has been a longstanding debate about how to apply the one-year time limit on Clean Water Act Section 401 certification decisions. The D.C. Circuit court in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019)...more

EPA Announces Reconsideration and Potential Revision of the Clean Water Act Section 401 Final Rule

On May 27, the Environmental Protection Agency (EPA) announced its intent to reconsider the Clean Water Act (CWA) Section 401 final rule issued by the Trump administration in June 2020 (Final Rule)....more

Second Circuit Enforces the Clean Water Act Section 401 One-Year Time Limit

On March 23, the Second Circuit issued its opinion in N.Y. Dep’t of Enviro. Conservation v. FERC, Case No. 19-1610 (i.e., the “Empire Pipeline” case). The case concerns the Federal Energy Regulatory Commission’s (FERC or...more

FERC’s Clean Water Action Section 401 Waiver Analysis Continues to Evolve

In 2019, the D.C. Circuit in Hoopa Valley Tribe v. FERC held that the plain language of Clean Water Act (CWA) Section 401 establishes a bright-line maximum period of one year for States to act on a request for water quality...more

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