Update – Army Corps Resumes Permit Actions

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On November 9, we reported that the U.S. Army Corps of Engineers (“Army Corps”) had paused action on certain permits that relied on the Trump Administration’s Clean Water Act (“CWA”) Sec. 401 Certification Rule (“2020 Rule”) after a California Federal Court vacated the 2020 Rule on October 21 of this year.

The Court’s action had the effect of reinstating the previous CWA 401 Rule issued in 1971 but left open the question of what would happen to pending permit applications that were certified by States under the 2020 Rule but where the permit had not yet been issued.

We recently confirmed that the Army Corps had resumed action on permits under the previous 1971 CWA 401 Certification Rule.  As we anticipated, the Army Corps will process new permit applications that require a CWA 401 Certification under the 1971 CWA 401 Rule.

For pending permit applications that were certified by a State under the 2020 CWA 401 Rule, the Army Corps will continue processing the application after confirming with the State that the CWA 401 Certification it previously provided under the 2020 Rule remains valid.

There are still several questions that we anticipate will be clarified in the coming weeks.  For example, we don’t yet know what process the Corps is using to obtain State confirmation of its 401 Certification and how this process will vary by Army Corps District and State.  We also do not know what will happen to the application if the State declines to provide its confirmation.  Presumably, this would require that the application be re-submitted to the State for a new 401 Certification review under the 1971 CWA 401 Rules.

It is difficult to predict how this would affect the application as it depends on how the State processes the re-submitted application, but it stands to reason that if a State declines to confirm its certification for a specific project, it is likely the State is seeking to more directly influence conditions on that project than what the 2020 Rules allowed.  Finally, we do not know how this process will affect the 16 Nationwide Permits that were issued under the 2020 Rule and how States will address registrations under these NWPs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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