In yet another development relating to Clean Water Act (CWA) Section 401 water quality certifications, a recent policy directive from the Department of the Army could impose tighter timeframes for a state to review whether projects comply with state water quality standards. The U.S. Department of the Army has issued a policy directive memorandum requiring the U.S. Army Corps of Engineers (USACE) to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under CWA Section 401 in conjunction with USACE’s issuance of dredge and fill permits under CWA Section 404. The directive also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.
Under current USACE regulations, a state has 60 days (subject to some exceptions) following receipt of a request for a Section 401 certification to act on the request or the state will be deemed to have waived certification. See 33 C.F.R.§ 325.2. As the policy directive notes, despite this regulatory requirement it is “standard practice” for District Engineers to give states an entire year (the maximum allowed under CWA Section 401) to act on a request for water quality certification. While USACE regulations allow District Engineers to provide states shorter or longer time frames to issue Section 401 certifications when reasonable, the memo establishes a “default” time frame of 60 days unless the District Engineer determines that circumstances reasonably require a longer time frame.
USACE is directed to issue draft guidance that establishes criteria for District Engineers to identify reasonable timeframes for states to provide their decisions on 401 certification requests. Such guidance has not yet been issued. According to the memo, reasonableness can be based on the type of proposed activity or complexity of the site, but not on state workload, resource issues, or lack of sufficient information. While USACE regulations state that information provided by the state will be taken into account in determining a reasonable timeframe, the memo makes clear that the ultimate decision resides with the District Engineer. Without additional explanation or definition, the directive notes that USACE policy will be that timelines for state review will commence upon “receipt” of a “request for certification.”
The memorandum is intended to advance the current Administration’s priority of reducing the time period for federal regulatory approvals for infrastructure projects and comes at a time when states’ administration of CWA Section 401 is under greater scrutiny by the courts (see Hoopa Valley Tribe v. FERC, 2019 U.S. App. LEXIS 2454 (D.C. Cir. 2019), Millennium Pipeline Co., LLC v. Seggos, 860 F.3d 696 (D.C. Cir. 2017), Constitution Pipeline Company, LLC, 162 FERC ¶ 61,014, reh’g denied, 164 FERC ¶ 61,029 (2018), appeal pending sub nom. Constitution Pipeline Company, LLC v. FERC, D.C. Cir. No. 18-1251 (filed Sept. 14, 2018)) and Congress.
The Trump Administration has indicated that the Section 401 water quality certification program should be revised in light of a number of states using it to block pipeline construction projects, such as Constitution and Millennium. The result of the USACE’s proposed directive may be quite the opposite, however, as states can instead simply deny 401 water quality certifications if they have not had enough time to review or if they intend to use this as a platform to block projects. Not surprisingly, many states have objected to USACE’s policy directive and it is anticipated that these issues will continue to unfold in the administrative and judicial contexts.