The United States Army Corps of Engineers (USACE) has announced they are stopping processing Clean Water Act (CWA) permits. This change is just the latest change in Biden's attempt to protect the United States' water resources.
Federal Clean Water Act Interpretation to Change
We have been anxiously waiting for an update on the Biden administration's proposed changes to the federal Clean Water Act (CWA) and permit decision since the United States Army Corps of Engineers (USACE) published this announcement in August.
Jurisdictional Waters of the United States
Changes to the definition of Waters of the United States (WOTUS) and a "second rule that builds on that regulatory foundation" may have significant implications for developers, including nationwide permits available for their projects. The Environmental Protection Agency (EPA) will base these environmental quality standards and regulations on public opinion and updated research.
We have not heard an update on the revised rulemakings; however, it has come to our attention that on November 4, the U.S. Army Corps Sacramento District published the following in the Latest News section of their website:
“Due to the decision of the United States District Court for the Northern District of California on October 21, 2021, to remand EPA's 2020 401 WQC rule with vacatur, the Corps of Engineers is not finalizing permit decisions that rely on a 401 WQC or waiver under EPA's 2020 rule at this time. The Corps is working to provide more refined guidance that provides a way forward that allows us to finalize permit decisions.”
How Will This Impact Clean Water Act Permit Processing?
This decision has significant ramifications for projects with a pending permit application or for those who plan to seek to submit a CWA permit application permit soon that rely on the 401 WQC rule finalized by the Trump administration in 2020. This change means that the USACE has also stopped processing applications seeking a nationwide permit under these 16 categories that were created or modified in 2020:
12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
This announcement is not just limited to Sacramento - it has nationwide implications. We are starting to see other USACE districts add the same announcement to their websites, including Rock Island, Galveston, NOLA, and Vicksburg. Transect reached out to the Sacramento District and has received the following feedback:
"We remain in a holding pattern regarding making permit decisions that rely on a certification or waiver under the 2020 CWA 401 rule. This concept applies to non-reporting NWPs or those that do not require a preconstruction notification (PCN). The court ruling does not affect any activity under Clean Water Act section 404 that has a general permit, individual section 401 certification, or waiver under the 1971 CWA regulations. If you've requested a section 401 certification or have a granted/waived 401 certification under the 2020 CWA section 401 rule, you can contact the 401 certifying authority to see your options."
We interpret this to mean that any new project that would typically proceed with construction under one of the Nationwide Permits listed above is not allowed to use that Nationwide Permit for now. This change means project proponents would need to either avoid any potential impact on the waters of the U.S. or apply for an Individual Permit. However, even Individual Permits cannot be processed by the USACE right now until the 401 certification rule is settled.
How Will This Impact Your Project?
As permitting requirements and protected waters may change, land developers' environmental requirements may follow suit. Only time will say how the new era of the CWA will look. We recommend using a waters and wetlands map, practicing proper environmental due diligence, and following up with your respective environmental team to ensure you are following the latest environmental requirements.
UPDATE: Clean Water Act Permits
As of December 3, 2021, USACE districts are starting to place the following update on their websites: On November 18, 2021, after a temporary pause on permit decisions reliant on a Clean Water Act Section 401 water quality certification or waiver completed under the vacated regulations. Corps districts resumed making decisions on all permit applications and requests for nationwide permit verifications. As part of that decision-making process, districts will coordinate with certifying authorities on water quality certifications the vacatur order impacts.
We will update as the final decision on jurisdictional waters of the U.S. is decided. We are eager to see how these changes impact environmental protection efforts and environmental permitting requirements.