The U.S. Supreme Court on April 6, 2022, issued an emergency order reinstating the Trump Administration’s rule governing Section 401 of the Clean Water Act. The rule imposes limits on the timing and scope of a State or Tribe’s ability to add conditions related to water quality to permits issued by the federal government. The Court’s unusual ruling without much explanation reinstates the Trump rule, at least temporarily, until the Ninth Circuit rules on pending appeals challenging that rule. Regardless of the outcome of the appeals, a new rule is likely since the Biden Administration has proposed administrative action on Section 401. The Supreme Court’s rule clarifies how Section 401 will be interpreted in the near future, but the longer-term future remains clouded.

Key Takeaways

• As we have previously reported, a U.S. District Court for the Northern District of California in October 2021 vacated the Trump Administration rule, adopted in June 2020, that significantly restricted the scope of the conditions states are permitted to impose on federal permits under Section 401 of the Clean Water Act. Several states appealed that decision to the U.S. Court of Appeals to the Ninth Circuit.

• The Supreme Court’s action overturns the injunction on enforcing the Trump rule that was in place while the Ninth Circuit appeal is decided. Hence, the Trump rule has new life, at least during the pendency of the Ninth Circuit appeal.

• On June 2, 2021, the Biden Administration issued a Notice of Intent indicating that it would undertake an administrative process to revise the Trump Administration’s Section 401 rule, with a final rule likely to be issued in 2023.

• For the moment, the Supreme Court’s action clarifies that states and tribes attempting to exercise their powers under Section 401 to impose conditions on federal water quality certificates will be limited by the restrictions included in the Trump rule. But that is likely to change, either if the Ninth Circuit, like the District Court, rejects the Trump rule or if the rule is substantially altered by the Biden Administration, which seems likely.

• Until the dust ultimately settles, interpretative questions about how the one-year time limit allowed to states to act under Section 401 is construed, and especially how or whether the time limit can be extended, will remain.

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