EPA and Corps Increase Flexibility for States and Tribes Issuing CWA Section 401 Certifications
On August 19, 2021, the Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, “Agencies”) issued a memorandum addressing Clean Water Act (“CWA”) Section 401 certifications. The memorandum grants certifying authorities (i.e., states and tribes) more time to certify the pending 41 Nationwide Permits (“NWPs”) that were proposed in September 2020. The memorandum also includes an enclosure directing Corps field staff to afford certifying authorities increased flexibility regarding the 2020 regulations implementing CWA Section 401 (“2020 Rule”).
Background on CWA Section 401 Certification and CWA Section 404 NWPs
CWA Section 401 requires persons seeking a federal permit for an activity that may cause a discharge into waters of the United States to obtain a certification from the relevant certifying authorities that the proposed activity will not violate applicable water quality standards. Related to the certification process, the 2020 Rule sought to limit the discretion of certifying authorities regarding, among other things, the scope of certification, the scope of conditions, their ability to reopen certifications, and the timing of their certification decisions. See GSL Insight.
Under CWA Section 404, the Corps is authorized to issue general permits, including NWPs. NWPs authorize a category of activities throughout the nation when the conditions of those permits are satisfied. In addition to the general conditions included in NWPs by the Corps, certifying authorities may establish regional conditions that apply to the use of NWPs within their jurisdiction.
In January 2021, the Corps finalized 16 NWPs. However, the Corps has not finalized the other 41 pending NWPs that it proposed last year.
Memorandum Concludes No Waiver of Certification Rights and Gives States and Tribes Option to Revise Conditions for NWPs
In response to concerns raised by certifying authorities, the memorandum provides that the Corps will extend the reasonable period of time for those authorities to issue a certification decision on the pending 41 NWPs from 60 days to one year. Notably, the existing 60-day deadline passed before the Agencies issued the memorandum. Nevertheless, the memorandum concludes that no certifying authority waived its ability to issue a certification decision with conditions because no law “limit[s] the Corps to granting extensions” after the 60-day default deadline has expired. The memorandum also provides that, during the extension period, “certifying authorities may clarify conditions and/or remedy any procedural deficiencies in their certifications” that could “have resulted in a waiver of a condition(s) or the certification itself.”
Enclosure Directs Corps to Afford States and Tribes Significant Flexibility When Applying the 2020 Rule
In addition to the memorandum, the Agencies provide an enclosure containing directives on how Corps field staff should implement the 2020 Rule related to Corps permits (e.g., CWA Section 404 permits). Most notably, the enclosure includes the following directives:
Corps districts should liberally grant certifying authorities extensions beyond the 60-day default deadline, even if they must rely on factors outside of those enumerated in the 2020 Rule.
Districts may afford certifying authorities an extension of time up to the one-year statutory limit after the 60-day default deadline has passed if the federal license or permit has not been issued.
Certifying authorities may amend a certification at any point within the reasonable period of time, which includes extensions, when authorized by the federal permitting agency.
Corps field staff should only review a certification condition or denial for procedural compliance and should not substantively analyze the sufficiency of information provided.
Corps field staff should work with certifying authorities to resolve procedural deficiencies and thereby avoid the potential for the waiver of certification or conditions.
If a certification with conditions complies with the procedural requirements of the 2020 Rule and CWA Section 401, the conditions must be incorporated into the license or permit.
Corps field staff should work with certifying authorities to identify and address circumstances that may appropriately require permit modifications, including modifications to certification conditions incorporated into the permit.
Key Takeaways
Through their memorandum and directives, the Agencies are attempting to find legal means to nullify certain aspects of the 2020 Rule with respect to NWPs and other Corps-issued permits. The Agencies attempts likely will result in legal challenges. Any facial challenge to the memorandum and enclosure likely would be unsuccessful given the non-binding nature of the documents and well-established judicial precedent. However, expect project-specific challenges where, for example, a waiver of certification or conditions would have occurred under the 60-day default deadline, but the Corps granted an extension after that deadline expired.
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A copy of the memorandum and attached enclosure is available here.
If you have any questions about the memorandum, attached enclosure, or CWA Section 401, please contact Good Steward Legal at insights@goodstewardlegal.com.
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