Twenty-One AGs Urged Supreme Court to Take Up Clean Water Act Section 401 Case

SEPTEMBER 27, 2019

Oregon Attorney General Ellen Rosenblum led a coalition of 21 attorneys general in filing an amicus brief urging the Supreme Court to review the U.S. Court of Appeals for the D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, a case centered on states’ authority under Section 401 of the Clean Water Act to grant or deny water quality certifications for certain infrastructure projects. In its January 2019 decision, the D.C. Circuit found that the withdrawal and resubmission of an application for water quality certification does not reset the one-year statutory limit on state review. The attorneys general warned in their amicus brief that under the D.C. Circuit’s ruling, states “may very well be deemed to have unwittingly waived their authority,” leading to major infrastructure projects being “exempted from vital state water quality requirements for decades” and potentially resulting in “significant harm to water quality across the country.”