On November 4, 2021, the Army Corps of Engineers (ACOE) announced that it is pausing all requests for coverage under 12 nationwide permits (NWPs) issued earlier this year, including widely used permits for utility and oil and gas projects, among others. The announcement followed a California district court’s decision vacating the Section 401 Water Quality Certification Rule (2020 401 WQC Rule) adopted by the Trump Administration in 2020. Important questions remain about how ACOE intends to proceed while coverage is paused.

Section 404 of the Clean Water Act (CWA) authorizes the ACOE to regulate the discharge of dredged and/or fill material into waters of the U.S. The CWA also requires that any person applying for a Section 404 permit also obtain a Section 401 Water Quality Certification (401 WQC) from the state, confirming that the discharge of fill materials will be in compliance with applicable water quality standards. States must also issue 401 WQCs for all activities occurring in their state per a NWP.

On January 5, 2021 ACOE released the final version of a rule revamping certain NWPs issued pursuant to Section 404. NWP 12 (as it existed prior to January 2021) was a general permit covering a range of activities such as utility line installation, development projects, road crossings, etc. The January rule reissued and modified 12 NWPs and issued four new NWPs, following an April 2020 decision by the U.S. District Court for the District of Montana vacating a prior version of NWP 12. These permits include:

  • Oil or Natural Gas Pipeline Activities;
  • Surface Coal Mining Activities;
  • Stormwater Management Facilities;
  • Mining Activities;
  • Underground Coal Mining Activities;
  • Land-Based Renewable Energy Generation Facilities;
  • Water-Based Renewable Energy Generation Pilot Projects;
  • Electric Utility Line and Telecommunications Activities; and
  • Utility Line Activities for Water and Other Substances.

On October 13, 2021, the U.S. House of Representatives Committee on Transportation and Infrastructure asked the Biden Administration to examine the reissued NWPs. The October 13, 2021 letter indicates that the Committee felt that the rule reissuing the NWPs was rushed and did not have adequate opportunity for public comment.

On October 21, 2021, the U.S. District Court for the District of Northern California vacated the 2020 401 WQC Rule. The Court’s ruling effectively reinstated the U.S. Environmental Protection Agency’s (EPA) previous rule, which had been in effect since 1971. The Trump Administration 2020 401 WQC Rule changes were aimed at expediting and streamlining the permitting process. In vacating the 2020 401 WQC Rule and while not ruling on the merits of the legality of the rule (because EPA had agreed to remand of the rule), the court stated that it was incompatible with a 1994 U.S. Supreme Court decision, PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700, 710 (1994).

Following the decision, on its website, ACOE stated that:

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.

The Northern District of California’s decision has been appealed to the Ninth Circuit and is the subject of a motion to stay, which will be heard on December 2, 2021.

For the time being, landowners affected by the Corps’ halting of its permit decisions may apply for an individual CWA Section 404 permit; however, the Corps has signaled that it is unable to finalize any permit decisions that rely on the 401 WQC Rule, including individual permits. Individual permits are typically more appropriate for projects that may have potentially significant applications (unlike the types of projects for which the NWPs were issued) and often take longer for the Corps to issue. Accordingly, we note that given the uncertainty of this matter, project schedules should be padded to reflect the likelihood that permitting approvals may take longer than expected.