Ohio, ex rel. Dave Yost, Attorney General of Ohio v. Rover Pipeline, LLC, et al.

Section 401 of the Clean Water Act preserves state sovereignty by giving States a “certification” role in federal licensing for proposed projects that might pollute waterways through “any discharge into the navigable waters.” 33 U.S.C. §1341(a)(1). Before an applicant receives a license, a State must certify that the discharge will comply with water-quality laws. Id. A State waives this power 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.” Id. But the statute does not define a “request” for purposes of calculating waiver. Here, the Supreme Court of Ohio held that Ohio waived its Section 401 power by failing to act within a year of a company’s initial submission for certification, even though that submission was not “complete” under existing law. See Ohio Rev. Code §6111.30(A)– (B). As to waiver, this case presents this question: To start the States’ waiver timeframe under 33 U.S.C. §1341(a)(1), must an applicant submit a valid certification request that satisfies applicable legal requirements?

This Court has held that the Natural Gas Act sometimes impliedly preempts state laws. But the Natural Gas Act includes a saving clause, which says, “Except as specifically provided in this chapter, nothing in this chapter affects the rights of States under” the Clean Water Act. 15 U.S.C. §717b(d)(3). With respect to preemption, this case presents this question: If a State waives its certification power under 33 U.S.C. §1341(a)(1), does it retain other “rights … under” the Clean Water Act for purposes of 15 U.S.C. §717b(d)(3)?