This paper examines the Commission’s pre-Hoopa Valley interpretation of section 401 of the CWA, the D.C. Circuit’s interpretation of that section in Hoopa Valley, and the Commission’s reversal of position following the Hoopa Valley opinion. In addition, the paper discusses questions left unaddressed by the D.C. Circuit, and the apparent split among the FERC commissioners over how to resolve one of those open questions.
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