On October 21, 2021, a California District Court judge vacated the 2020 Clean Water Act 401 Water Quality Certification Rule (401 WQC) based on the determination that the rule is inconsistent with Supreme Court caselaw. Although 401 WQC can still occur under the 1971 401 WQC rule, the judge’s order has put project authorization under the 2021 Nationwide Permits (2021 NWPs) into limbo, resulting in a ‘pause’ of the U.S. Army Corps of Engineers (USACE) review and verification of projects seeking authorization under these general permits.
As of November 10, 2021, the USACE has not issued a press release or guidance on how this matter will be resolved. Email correspondence from USACE project managers in different USACE Districts identifies that the agency, in coordination with the U.S. Department of Justice and U.S. Environmental Protection Agency, is working to develop an approach to issue authorization under the 2021 NWPs in a manner that complies with this order.
Although the USACE pause on NWP verification is limited to those permits established or modified under the 2021 rule, this affects some of the most commonly used NWPs, including for projects such as oil and gas pipeline construction, overhead utility line construction, commercial and residential development, and host of other activities. The 2021 NWPs that are modified by the California District Court Order are 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 56, 57, and 58.
Given the uncertainty with the timing of the USACE’s resolution of this matter, project schedules should be considered and possibly revised to reflect potentially extended times to receive USACE authorization.
Additional information on the California District Court decision and USACE guidance is available through the following links.
- U.S. District Court for The Northern District of California Vacates EPA’s Clean Water Act Section 401 Certification Rule (news article by Van Ness Feldman, LLP)
- USACE Headquarters Regulatory Homepage (Civil Works Regulatory Program and Permits)
If you have questions regarding how these developments might affect your project, please reach out to your primary SWCA contact, daniel [dot] dejoode [at] swca [dot] com (subject: 401%20WQC%20and%202020%20NWP) (Daniel DeJoode), bonnie [dot] rogers [at] swca [dot] com (subject: 401%20WQC%20and%202020%20NWPs) (Bonnie Rogers), or noah [dot] greenberg [at] swca [dot] com (subject: 401%20WQC%20Rule%20and%202020%20NWPs) (Noah Greenberg).