Landowners and permit applicants received an email notification this week that the Army Corps of Engineers (Army Corps) would not be processing their requests for coverage under a variety of Clean Water Act (CWA) Section 404 Nationwide Permits (NWPs). NWPs are general permits that authorize activities under Clean Water Act Section 404 that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment.” CWA Section 404 (e)(1).
The email from the Army Corps states,
We were informed today that due to the decision of the United States District Court for the Northern District of California on October 21, 2021 to remand USEPA’s 2020 CWA 401 rule with vacatur, the US Army Corps of Engineers is not finalizing any permit decisions that rely on a certification or waiver under the 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. (Emphasis added)
This informal notification can be found on at least one Army Corps District website in the “Latest News” section, but as of this writing, the agency has not issued a formal notice or press release that it has halted coverage under its NWP program. The move affects these 16 NWPs that the Army Corps finalized in January 2021, all of which went through formal notice and comment rulemaking and were subject to the CWA Section 401 certification process before being issued:
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
The Army Corps’ notification comes weeks after EPA announced on its website that the Northern District of California court decision “requires a temporary return to EPA’s 1971 rule until EPA finalizes a new certification rule.” To date, neither agency has explained why the N.D. of California decision would result in a nationwide vacatur of the 401 Rule, or why that court decision would affect NWPs that were properly promulgated based on the law that was in effect at the time. Indeed, no court has considered or concluded that these NWPs, or the Section 401 certifications issued for them, are unlawful.
The notification was also issued the very same day as the Senate voted 92-5 to confirm Michael Connor to serve as the assistant secretary of the Army for civil works. It is unclear if Mr. Connor ordered the halt in permitting, but his ability to make headway on the administration’s infrastructure, resilience, and climate goals will no doubt be hindered by the significant uncertainty left in its wake. As the list above indicates, until further notice, NWP coverage will not be granted for stormwater management projects; land- or water-based renewable energy projects; or electric, telecommunications or water utility line activities — not to mention residential, commercial, industrial, agricultural, and recreational activities.
In the interim, landowners and project proponents do have the option of applying for an individual CWA Section 404 permit, but that process can take up to a year or more to complete, compared to the NWP process, which is intended to streamline the process for those activities with minimal environmental impact and can take as little as 60 days. For context, the Army Corps grants CWA Section 404 general permit coverage for more than 50,000 activities per year, but only issues an average of 2,500 individual CWA 404 permits per year.
The Army Corps’ notification leaves so many questions unanswered. How long will it take the agency to “provide more refined guidance”? Will the agency seek new programmatic Section 401 certifications for these NWPs before coverage can be granted? If so, will the agency re-promulgate the NWPs so they include new certification conditions, or will the agency attempt to add new conditions without going through the rulemaking process? Will the agency require every activity authorized under CWA Section 404 to receive an individual Section 401 certification until EPA promulgates a new certification rule?