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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 14, 2022

US Supreme Court Upholds Trump Administration's Certification Rule

As an update to our previous legal alert, on April 6, 2022, the US Supreme Court reinstated a Trump administration rule that curtails the authority of states and authorized tribes to deny certification of certain federal permits (Certification Rule) under the Clean Water Act (CWA). 
    
Under CWA Section 401, a federal agency may not grant a permit that allows a discharge into waters of the United States unless the affected state or authorized tribe certifies that the proposed activity complies with water quality standards or waives certification. Federal licenses and permits subject to this authority include those issued by the US Environmental Protection Agency (EPA), the Army Corps of Engineers, and the Federal Energy Regulatory Commission. A state is deemed to have waived its delegated authority if it “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.” Previously, states could avoid the one-year limit by allowing multiple cycles of withdrawal and resubmittal of 401 applications. In the Certification Rule, however, the EPA adopted the view that one year means one year. The EPA also narrowed the scope of conditions a state could impose on a project as part of the certification. 

The US District Court for the Northern District of California overturned the Certification Rule, but an emergency petition was ultimately filed with the US Supreme Court to block the district court’s ruling while industry groups and several states appeal the decision in the Ninth Circuit.  The US Supreme Court granted the petition and reinstated the Certification Rule, putting the limits on states and authorized tribes back into effect.

The shift in the regulatory landscape is likely to be temporary, as the Biden administration develops a new rule, which was submitted to the Office of Management and Budget for review on March 25. A final rule is anticipated in 2023. The Trump administration’s rule will remain in effect in the meantime. 

If you have any questions regarding the content of this alert, please contact Emma Marshall, associate, at emarshall@barclaydamon.com; Tom Paul, counsel, at tpaul@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas or Energy Team.

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