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Vacatur of Trump Rule Limits Nationwide Permit Coverage

On October 21, 2021, the U.S. District Court for the Northern District of California vacated the 2020 State Water Quality Certification (WQC) Rule, which is considered to apply nationwide.  Subsequently, some U.S. Army Corps of Engineers Districts have advised permittees that they will not finalize permit decisions that rely on a Clean Water Act (CWA) Section 401 WQC or a waiver under the now vacated 2020 State WQC rule (click here for an example, scroll to “Latest News”).  This halt in permitting appears to include the use of sixteen CWA Section 404 Nationwide Permits that the Corps finalized earlier this year.  In the weeks following the vacatur, neither the Corps nor U.S. Environmental Protection have provided guidance on how to proceed.  AGC will continue to monitor these developments.

Projects undergoing the water quality certification process should be advised that EPA has announced: “The order requires a temporary return to EPA’s 1971 Rule until EPA finalizes a new certification rule.”

If your projects are being delayed due to this action or for more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.  Readers may also want to refer to this blog post by Troutman Pepper that provides additional insight. AGC participates in a national coalition that Troutman Pepper manages called Species Strategies and Solutions.  

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