Summary:
The Environmental Protection Agency’s Clean Water Act Section 401 Certification Rule, which became effective last fall, has significant implications for processing Corps permits.
The new Rule updates and clarifies the substantive and procedural requirements for water quality certification (WQC) under the Clean Water Act (CWA).
Notably, it establishes specific time frames for each step of the process.
The new Rule also affirms the EPA’s authority to determine in its discretion whether the discharge from a certified project “may affect” the water quality in a neighboring jurisdiction and added agency coordination timelines.
The stated mission of the U.S. Army Corps of Engineers Regulatory Program is to issue fair, timely, and balanced permit decisions that protect aquatic resources and navigation while authorizing needed development. No doubt, the nearly 1,200 members of the Regulatory Community of Practice take that responsibility very seriously and work tirelessly to implement new regulations using Corps Headquarters’ guidance as it becomes available.
My recent interactions with Corps Regulatory staff at the District level show how the Corps is implementing procedures outlined in EPA’s September 2021 CWA Section 401 Certification Rule. (For the Corps of Engineers Savannah District’s public notice on the rule, click here.) In particular, emerging insights about how certain Corps Districts are applying the so-called “Neighboring Jurisdiction” provision are worthy of closer consideration.
For permit applicants, this is an important development because it adds time to the permit process. To obtain a Corps permit, an applicant must submit a permit application and a WQC from the state in which a section 401 discharge occurs, or proceed under a waiver, expressed or implied. Although section 401 certification authority lies with the jurisdiction where the discharge originates, a neighboring jurisdiction (state or authorized tribe) whose water quality is potentially affected by the discharge may raise objections to a certification issued for a Corps permit under Section 121.12 (known as 401(a)(2)) of the Rule.
Upon receipt of a permit application and WQC, the Corps must within 5 days notify EPA and provide the relevant documentation. EPA has 30 days to determine whether the discharge “may affect” the neighboring jurisdiction’s waters. If EPA makes such a “may affect” determination, EPA notifies the neighboring jurisdiction, the Corps, and the permit applicant. The neighboring jurisdiction then has 60 days to:
determine whether the certified discharge “will affect” the quality of its waters so as to violate any of its water quality requirements;
notify EPA and the Corps in writing of its objection to the issuance of the permit; and
request a public hearing on its objection.
If requested, the Corps must hold a public hearing with a 30-day advance public notice and the EPA is required to submit its evaluation and recommendations concerning the objection. The Corps, after considering the recommendations of the neighboring jurisdiction, EPA, and additional evidence from the hearing, shall condition the permit as necessary to ensure compliance with applicable neighboring jurisdiction water quality requirements. If the imposition of such conditions cannot ensure compliance, the Corps shall not issue the permit.
It is important to note that under this part of the Rule, the Corps, and the Corps alone, is given the authority to decide whether to approve or not approve permit issuance. Whatever the Corps’ decision, it must be supported by a fact-based administrative record. EPA’s role in this process revolves around initiating the neighboring jurisdiction process and providing recommendations and advice based upon its long-standing experience with the CWA. The neighboring jurisdiction’s rights are limited, it provides input to the Corps, but it does not have a “veto” as regards permit issuance.
In summary, this new Rule makes it even more important for a permit applicant to discuss and identify ALL section 401 requirements with the Corps District involved, including the neighboring jurisdiction provision, early on in the permit process to help avoid delays.
Linda Morrison
Senior Advisor
A member of the Dawson team since 2013, Linda served as Assistant Secretary of the Army’s liaison to the Corps of Engineers and the Office of Management and Budget for the Civil Works National Program and in the Regulatory Program for the Corps both at the District level and Headquarters.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.