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) established a bright-line standard that a 401 certification must be issued or denied within one year of
Troutman Pepper Hamilton Sanders LLP
Troutman Pepper is a national law firm known for its higher commitment to client care. With more than 1,100 attorneys in 23 U.S. cities, the firm partners with clients across every industry sector to help them achieve their business goals.
Website:
https://www.troutman.com/
Latest from Troutman Pepper Hamilton Sanders LLP - Page 20
Mandatory Homeland Security Cybersecurity Directive
* Meg Heyse is a 2021 summer associate at Troutman Pepper. She is not admitted to practice law.
In April 2021, the Department of Energy (DOE) launched a 100-day initiative to strengthen cybersecurity protections in the energy sector. Just one month later, the Transportation Security Administration (TSA), an agency under the purview of the Department…
District Court Lacked Jurisdiction Over Clean Water Act Section 404 Permit Challenge Involving FERC License Amendment
On March 31, U.S. District Judge Christine Arguello found that the Federal Power Act (FPA) is the exclusive authority with regards to controversies related to Federal Energy Regulatory Commission (FERC) -issued hydroelectric licenses, including challenges that stem from the permitting decisions of other federal agencies acting under their independent statutory authority. In Save the Colorado…
Judge Does Not Require Dam to Alter Water Flows for ESA Species Protection
On April 15, Judge André Birotte Jr. for the U.S. District Court for the Central District of California determined that the U.S. Bureau of Reclamation’s (Bureau) operation of the Twitchell Dam with certain water flows did not result in an unlawful take of Southern California Steelhead trout, a species listed as endangered under the federal…
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).
Section 401 of the CWA provides a cooperative federalism framework where states and authorized Tribes can issue a water quality certification that places…
FERC Terminates Licenses for Projects Involved in Michigan Dam Breach
In an order dated May 20, 2021, the Federal Energy Regulatory Commission (FERC, or the Commission) terminated the hydropower licenses for three projects located on the Tittabawasee River in Michigan—the Secord (P-10809), Smallwood (P-10810) and Sanford (P-2785) dams. The termination by implied surrender follows a May 2020 breach at the Sanford dam and the breach…
Biden EPA Rescinds Trump’s Cost-Benefit and Guidance Document Rules
Although the Biden administration has yet to issue many new substantive air quality regulations, Biden’s EPA recently issued two rules revoking Trump-era procedural regulations that should pave the way for a more aggressive regulatory agenda. On May 13, EPA rescinded the “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act…
Second Circuit Sides With FERC – States May Not Agree to Revise the Certification Request Date to Avoid Waiver of its Certification Authority Under Section 401 of the Clean Water Act
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 waived its certification authority under the Clean Water Act (“CWA”) by failing to act within the one-year statutory deadline. Notably,…
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 Commission) determination that the New York State Department of Environmental Conservation (NYSDEC) waived its water quality certification authority with regard…
FERC Establishes Water Quality Certification Waiver Period for Natural Gas Projects
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 water quality certification request for proposed natural gas and liquefied natural gas projects.…