Clean Water Act (CWA)
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.

H.R. 6745
Update Type
Committee Name
Committee on Transportation and Infrastructure
Sponsor Name
DeFazio
Sponsor Party Affiliation
D-Or.
Issue
7
Volume
50
Update Issue
15
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H1983

would prohibit implementation of a rule defining ‘‘waters of the United States’’ under the FWPCA.

H.R. 5856
Update Type
Committee Name
Committee on Transportation and Infrastructure
Sponsor Name
Sewell
Sponsor Party Affiliation
D-Ala.
Issue
4
Volume
50
Update Issue
6
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H1046

would amend the FWPCA to establish a decentralized wastewater grant program.

S. 3274
Update Type
Committee Name
Committee on Environment and Public Works
Sponsor Name
Booker
Sponsor Party Affiliation
D-N.J.
Issue
4
Volume
50
Update Issue
6
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. S989

would amend the FWPCA to establish a decentralized wastewater grant program.

H.R. 5799
Update Type
Committee Name
Committee on Transportation and Infrastructure
Sponsor Name
Thompson
Sponsor Party Affiliation
R-Pa.
Issue
4
Volume
50
Update Issue
6
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H976

would amend the FWPCA with respect to normal farming activities and to require the U.S. Army Corps of Engineers and EPA to apply certain decisions of the Secretary of Agriculture when enforcing the Act.

H.R. 4275
Update Type
Issue
4
Volume
50
Update Issue
5
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H805-06

which would amend the FWPCA to reauthorize the Lake Pontchartrain Basin Restoration Program, was passed by the House.

H.R. 4044
Update Type
Issue
4
Volume
50
Update Issue
5
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H780-85

which would amend the FWPCA to reauthorize the National Estuary Program, was passed by the House.

H.R. 4031
Update Type
Issue
4
Volume
50
Update Issue
5
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H799-805

which would amend the FWPCA to reauthorize the Great Lakes Restoration Initiative, was passed by the House.

H.R. 2247
Update Type
Issue
4
Volume
50
Update Issue
5
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H788-96

which would amend the FWPCA to provide assistance for programs and activities to protect the water quality of Puget Sound, was passed by the House.

H.R. 1620
Update Type
Issue
4
Volume
50
Update Issue
5
Update Volume
50
Congress Number
116
Congressional Record Number
166 Cong. Rec. H796-99

which would amend the FWPCA to reauthorize the Chesapeake Bay Program, was passed by the House.

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