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. NYDEC v. FERC, the 2^nd 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 2^nd 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.