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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), allowing the lower court’s ruling to stand.

The key holding of the D.C. Circuit’s opinion, which concerned the ongoing Federal Energy Regulatory Commission’s (FERC) relicensing of the Klamath Hydroelectric Project, is that the States of California and Oregon waived their authorities under section 401 of the Clean Water Act (CWA), 33 U.S.C. § 1341, by failing to rule on the applicant’s submitted request for water quality certification within one year.  The D.C. Circuit held that the plain language of CWA section 401 establishes a maximum period of one year for states to act on a request for water quality certification.  Accordingly, the court further held that FERC erred in concluding that the “withdrawal-and-resubmittal” of the water quality certification application on an annual basis resets the one-year statutory time period for state action under section 401.
Continue Reading Supreme Court Declines to Hear Clean Water Act Section 401 Case

On April 15, 2019, EPA issued its long-awaited Interpretative Statement addressing the Clean Water Act’s applicability to releases of pollutants from point sources into groundwater that subsequently migrate to jurisdictional surface waters. The question this interpretation addresses stems from the 2018 federal circuit split previously discussed here. On February 19, 2019, the Supreme Court granted certiorari in one of the cases that contributed to the split, County of Maui v. Hawai’i Wildlife Fund. The United States filed its amicus brief in that case, urging the highest court to review County of Maui, but not a similar ruling from the Fourth Circuit. As the question was being reviewed by the federal courts, EPA requested public comment on this issue and received over 50,000 comments. EPA is addressing some of these comments in the Interpretative Statement.
Continue Reading EPA Publishes Interpretation of Clean Water Act’s Applicability to Pollution Traveling Through Groundwater