As we reported previously, on April 6, 2022, the U.S. Supreme Court stayed a California district Court decision to vacate the Section 401 Water Quality Certification Rule (401 WQC Rule), which means that the rule is back in effect while an appeal is pending in the Ninth Circuit.

However, this week, environmentalist coalitions and blue states asked Judge Alsup, Senior District Judge of the United States District Court for the Northern District of California, to issue a statement indicating that if he knew the U.S. Supreme Court was going to vacate his decision, he would have permitted the case to proceed on its merits.  If Judge Alsup issues this statement to the Ninth Circuit and the Ninth Circuit accepts it, the appeal could be allowed to resume in the district court.

Those challenging the rule have argued that the very harm that the district court sought to avoid has been and will continue to occur absent either a replacement rule going into effect or the resolution of the Ninth Circuit appeal and the likely petition for certiorari to the U.S. Supreme Court.