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 Valley Tribe v. FERC, the D.C. Circuit held that an agreement between the applicant and the state pursuant to which the applicant repeatedly withdrew and resubmitted its 401 application could not escape the statutory time limit on state review. Then, in NYDEC v. FERC, the 2nd Circuit held that DEC could not escape the one-year limit by asking the applicant to supplement the application, arguing that the one-year period was not triggered until DEC determined that the application was complete.  Now, in a case involving the same parties as NYDEC v. FERC, the 2nd Circuit held last week that DEC could not escape the one-year limit by reaching an agreement with the applicant to redefine the date on which DEC had received the application.

Notably, DEC argued that the time limit was intended to protect the applicant’s right to a prompt review and that the applicant should thus be able “to waive or modify this right by agreeing to a different receipt date.”  Not so, said the Court.

The legislative history shows that Congress was not primarily concerned with protecting the rights of individual applicants. Rather, it shows that Section 401’s time limit was meant to protect the regulatory structure, particularly in situations involving multiple states: in other words, to “guard[] against” one state “sit[ting] on its hands and do[ing] nothing” at the expense of other states that are also involved in a multi-state project.  Thus, consistent with our approach in New York I, the legislative background of Section 401 confirms that Congress could not have intended to permit the arrangement advocated by the DEC and Sierra Club, which introduces the uncertainty the one-year limitation period was intended to eliminate.

I’m pretty sure that this does not mark the end of litigation over the one-year limit.  There are still going to be situations when states believe that they have legitimate reasons for taking more than one year to review an application for a 401 certification.  In some of those cases, the applicant may not object.  Human ingenuity being what it is, states are going to continue to look for ways around the one-year limit.  I do think, though, that the cumulative impact of these cases is that the states are going to have to be fairly ingenious if they are going to make their next end-run stick.

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