News & Analysis as of

Section 401

Vandeventer Black LLP

Legal Alert – U.S. Army Corps Pauses Permit Decisions

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Permit applicants who have pending applications with the U.S. Army Corps of Engineers (“Army Corps”) may have received word in the last two weeks that the Army Corps has paused finalization of any permit decisions that relied...more

Foley Hoag LLP - Environmental Law

The Trump 401 Certification Rule is Vacated — Does Anyone Actually Care If Section 401 Works?

Late last week, Judge William Alsup vacated the Trump-era EPA amendments to the regulations governing water quality certifications under section 401 of the Clean Water Act.  EPA had requested remand, and made clear that it...more

BakerHostetler

The Section 401 Water Quality Certification Program and Its Impacts on Energy and Infrastructure Projects

BakerHostetler on

Section 401 of the Clean Water Act (CWA) requires applicants for federally permitted projects “that may result in any discharge into the navigable waters” of the United States to seek water quality certifications from the...more

Troutman Pepper

EPA and Army Corp’s Joint Section 401 Guidance Walks Back Regulatory Certainty

Troutman Pepper on

On August 19, EPA and the Army Corps of Engineers (Corps) issued a joint guidance document concerning implementation of EPA’s 2020 Water Quality Certification Rule. The agencies explain that the guidance applies specifically...more

Beveridge & Diamond PC

New Interpretation of Shot Clock Rules? Fourth Circuit Weighs In On Clean Water Act’s One Year Deadline for State Water Quality...

Beveridge & Diamond PC on

On July 2, 2021, the U.S. Court of Appeals for the Fourth Circuit waded into the controversy surrounding proper interpretation of the one-year deadline for state action contained in Section 401 of the Clean Water Act. Its...more

Troutman Pepper

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

Troutman Pepper on

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

Troutman Pepper

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

Troutman Pepper on

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

Bricker & Eckler LLP

Ohio EPA waiver of 401 water quality certification for 2021 nationwide permits

Bricker & Eckler LLP on

The U.S. Army Corps of Engineers (Army Corps) issued its final rule  on January 13, 2021, modifying and reissuing 12 existing nationwide permits (NWPs) and issuing four entirely new NWPs, which went into effect on March 15,...more

Downey Brand LLP

California Supreme Court Grants Review of Third District’s Preemption Decision

Downey Brand LLP on

On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the...more

Troutman Pepper

Second Circuit Sides with FERC – States May Not Agree to Revise the Certification Request Date to Avoid Waiver of its...

Troutman Pepper on

On March 23, 2021, the United States Court of Appeals for the Second Circuit (the “Second Circuit” or the “Court”) agreed with FERC’s determination that the New York State Department of Environmental Conservation (“DEC”) had...more

Troutman Pepper

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

Troutman Pepper on

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

Kilpatrick Townsend & Stockton LLP

Water and Wastewater Outlook 2021

All indicators point to a 180-degree turn from the Trump de-regulatory effort. The question becomes where will the Biden administration start? On his first day in office, President Biden published a “List of Agency Actions...more

Troutman Pepper

FERC Establishes Water Quality Certification Waiver Period for Natural Gas Projects

Troutman Pepper on

On March 18, 2021, FERC issued a Final Rule amending its regulations to establish a one-year period for states, tribes, or other certifying authorities (“Certifying Agencies”) to act on a Clean Water Act (“CWA”) Section 401...more

Foley Hoag LLP - Environmental Law

States Really, Really, Must Act on Water Quality Certification Applications Within One Year

The saga of judicial efforts to enforce the one-year limit on state review of applications for water quality certifications under Section 401 of the Clean Water Act shows no sign of reaching a conclusion. First, in Hoopa...more

Beveridge & Diamond PC

FERC Adopts Final Rule Formalizing One-Year Deadline for States To Issue Clean Water Act Certifications; Second Circuit Affirms...

Beveridge & Diamond PC on

On March 18, 2021, the Federal Energy Regulatory Commission (FERC) adopted a Final Rule requiring state agencies to issue Clean Water Act (CWA) Section 401 water quality certificates within one year of receiving a request or...more

Morgan Lewis - Power & Pipes

FERC Modifies Water Quality Certification Waiver Period for Gas Projects

FERC issued a final rule on March 18 amending its regulations to establish a one-year period for state agencies or other certifying authorities to act on requests for water quality certifications required for a certificate of...more

Troutman Pepper

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

Troutman Pepper on

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

Beveridge & Diamond PC

FERC Proposes One-Year Deadline for States to Issue Clean Water Act Certifications

Beveridge & Diamond PC on

Acting in response to a Trump Administration Executive Order instructing federal agencies to reduce regulatory uncertainties and expedite construction of energy infrastructure, the Federal Energy Regulatory Commission (FERC)...more

Bradley Arant Boult Cummings LLP

IRS Confirms Use of COVID-19 Leave-Sharing Plans

The Internal Revenue Service (IRS) has recently published frequently asked questions addressing leave-sharing plans related to the COVID-19 pandemic. Following IRS Notice 2006-59, the IRS has confirmed that employers may set...more

Bond Schoeneck & King PLLC

Current Events and Roiling Waters - Part 3: New Restrictions on State and Tribal Water Quality Certifications 

This is Part 3 in a five-part series addressing the recent changes in legal standards regulating water resources in the United States. Part 3 examines the requirements and limitations on water quality certifications to be...more

Bond Schoeneck & King PLLC

Current Events and Roiling Waters: A Series Update on Recent Clean Water Act Developments

The past few months brought a steady storm of change in the rules governing the activities that impact our country’s water resources. Regulatory agencies and the regulated community—especially utilities, municipalities and...more

Nossaman LLP

[Webinar] WOTS Next? An Update on the Clean Water Act and Regulation of Waters of the State & Waters of the U.S. - July 16th, 1:00...

Nossaman LLP on

In the ever-shifting landscape of the Clean Water Act and Porter-Cologne jurisdiction, it can be difficult to determine whether you are engaging in activities that result in discharges of dredge, fill or pollutants to a Water...more

Benesch

U.S. EPA Rule Seeks to Curtail State Discretion Under the Clean Water Act to Block Pipelines and Other Infrastructure Projects

Benesch on

On June 1, 2020, the U.S. Environmental Protection Agency finalized a regulation intended to reduce the ability of individual states, Native American tribes or interstate regulatory agencies to veto federal permits for...more

Nexsen Pruet, PLLC

EPA Limits State Authority in New 401 Certification Final Rule

Nexsen Pruet, PLLC on

EPA issued its Clean Water Act Section 401 Certification Final Rule on June 1, 2020 in an effort to comply with the directives of Executive Order 13868 promoting efficient permitting and timely agency actions. Section 401...more

Best Best & Krieger LLP

EPA Issues Final Rule to Narrow Scope and Timelines for State Water Quality Certifications

EPA Issues Final Rule to Narrow Scope and Timelines for State Water Quality Certifications - The Environmental Protection Agency released it final “Clean Water Act Section 401 Certification Rule” this week, which limits...more

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