U.S. Army Corps of Engineers Stops Processing Clean Water Act Permits
by Transect Team, on Nov 15, 2021
Update as of 12/3/2021: 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 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 that are potentially impacted by the vacatur order.
Transect has been anxiously waiting for an update on the Biden administration's proposed Clean Water Act (CWA) rulemakings since the U.S. Army Corps of Engineers (USACE) published this announcement in August.
Changes to the definition of Waters of the United States (WOTUS) as well as a "second rule that builds on that regulatory foundation" may have significant implications for developers, including a nationwide permit available for their projects.
You can review a brief history of the definition of WOTUS in our Guardians of the Clean Water Act article.
We have not heard an update on the revised rulemakings; however, it has come to our attention that on November 4, the US 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.
What Ramifications Does this Ruling Have on Processing Clean Water Act Permits?
This decision has major ramifications for projects with pending applications, or for those who plan to seek a Clean Water Act permit in the near future, that rely on the 401 WQC rule finalized by the Trump administration in 2020. This means that the USACE has also stopped processing applications seeking a nationwide permit under these 16 categories, which 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 applies to non-reporting NWPs or those that do not require a PCN. Any activity that would be regulated under section 404 of the CWA that has general or individual 401 certification or waiver under the 1971 CWA regulations are not affected by the court ruling… if you’ve requested 401 certification or are in possession of a granted/waived 401 certification under the 2020 CWA 401 rule, that you contact the 401 certifying authority to see what your options are.
We interpret this to mean that any new project that would normally proceed with construction under one of the Nationwide Permits listed above is not allowed to use that Nationwide Permit for now, which means project proponents would need to either avoid all impacts to 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.
More Updates to Come on Revised Guidance
While we are still unsure when "more revised guidance" will be issued or how a nationwide permit will ultimately be affected, Transect is committed to keeping our customers up-to-date on future EPA guidelines and rulemakings. The recommendations displayed in your Transect Report's Permits and Regulations have been updated to reflect these current uncertainties.