The U.S. Department of the Army’s Assistant Secretary for Civil Works 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 Clean Water Act Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water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.

The policy directive memorandum, which was signed by Assistant Secretary of the Army R.D. James, explains that under current USACE regulations, a state has 60 days 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.  The memorandum notes that despite this regulatory requirement, it is “standard practice” for District Engineers to give states an entire year (which is 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 for states 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  USACE is directed by the memo to produce draft guidance within 45 days that establishes criteria for District Engineers to identify reasonable timeframes for states to provide their decisions on 401 certification requests.  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.  Furthermore, 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.

The memorandum is intended to advance the Administration’s priority of reducing the time period for federal regulatory approvals for infrastructure and other developmental proposals 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)) [previous articles about these cases] and Congress.