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 appeared to include the use of sixteen CWA Section 404 Nationwide Permits that the Corps finalized earlier this year. Update: On Dec. 2, the Corps posted a notice on its website that it had resumed making decisions on all permit applications and requests for nationwide permit verifications.
For nationwide permits, the Corps districts will coordinate with certifying authorities on water quality certifications that are potentially impacted by the vacated order. 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.”
For more information, please contact Melinda Tomaino at melinda.tomaino@agc.org.