United States:
PipelineLaw BLOG: Act Or Waive: DC Circuit Construes CWA § 401's One-Year Deadline For State Action Applications
11 February 2019
Hunton Andrews Kurth LLP
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"According to FERC, it is now commonplace for states to
use Section 401 to hold federal licensing hostage."
These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy
Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25,
2019), to describe the state of play on § 401
certifications affecting hydroelectric facility licensing or
re-licensing applications. CWA § 401(a)(1) requires, as a
prerequisite for federal permits for activities that may result in
a discharge into the navigable waters, that affected states certify
that any such discharge will comply with applicable, enumerated
provisions of the Clean Water Act. But, if a state fails or refuses
to act on a request for certification within "a reasonable
period of time (which shall not exceed one year) after receipt of
such request," the statute deems the certification
requirements waived.
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