Do states waive their authority under section 401 of the Clean Water Act if they do not approve or deny a certification request within one year, even when an applicant withdraws and resubmits the request before that one year ends?

QUESTION PRESENTED The federal government licenses projects that affect the nation’s waters, but the role of ensuring that these projects comply with water-quality requirements is reserved for the states. Under the Clean Water Act, applicants for these projects must request and obtain a certification from the affected states that any discharges into the water will comply with federal and state water-quality requirements. States must “act” within one year of a request, or under section 401 of the Clean Water Act, they waive their authority to certify the applicant’s compliance with water-quality requirements. 33 U.S.C. § 1341. In complex cases, however, applicants and states alike require more than a year to develop the record that states need to make a decision. Thus, applicants often withdraw and resubmit their request before the oneyear period expires to avoid forcing the state to decide the request prematurely. In the decision below, however, the D.C. Circuit held that when applicants take this approach, it results in a waiver of the states’ Clean Water Act authority. In doing so, the court deepened a circuit conflict, and it struck a significant blow to the states’ role in ensuring the quality of our nation’s waters. The question presented is: Do states waive their authority under section 401 of the Clean Water Act if they do not approve or deny a certification request within one year, even when an applicant withdraws and resubmits the request before that one year ends? li PARTIES Petitioners California Trout and Trout Unlimited were intervenors in the proceedings below. California Trout is a nonprofit organization dedicated to protecting California’s water resources while balancing the needs of wild fish and people. Trout Unlimited is a national nonprofit organization dedicated to conserving, protecting, and restoring North America’s coldwater fisheries and their watersheds. The Hoopa Valley Tribe was the petitioner in the proceedings below and is therefore a respondent here. The Federal Energy Regulatory Commission was a respondent in the proceedings below and is therefore a respondent here. American Rivers, Klamath Water Users Association, PacifiCorp, Upper Klamath Water Users Association, and Siskiyou County were intervenors in the proceedings below and are therefore respondents here. RULE 29.6 DISCLOSURE California Trout is a nonprofit corporation organized under the laws of the State of California. It has no parent company, and no publicly traded corporation owns ten percent or more of any of its stock. Trout Unlimited is a nonprofit corporation organized under the laws of the State of Michigan. It has no parent company, and no publicly traded corporation owns ten percent or more of any of its stock. ili RELATED CASES e §©PacifiCorp, Project No. 2082-058, Federal Energy Regulatory Commission. Judgment entered June 19, 2014. e Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, U.S. Court of Appeals for the District of Columbia Circuit. Judgment entered January 25, 2019.