Section 401 of the Clean Water Act (“CWA”) provides states and tribes with a mechanism by which they may address the impacts of federally issued permits and licenses, such as dredge and fill permits issued under CWA § 404 and National Pollutant Discharge Elimination System permits under § 402. Pursuant to § 401, a federal agency cannot issue a permit or license for an activity that may result in a discharge to a water of the U.S. unless the state (where the discharge would occur) grants or waives the request for a Water Quality Certification (“WQC”). Under the CWA, states have a maximum of one year to act on WQC requests. Applicable U.S. Army Corps of Engineers (“USACE”) regulations at 33 CFR § 325.2, however, set a default time period of 60 days to act on such requests.
In relevant part, those regulations state:
No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act.
Despite this language, the “standard practice” by some district engineers has been to give states a full year to act on WQC requests. Now, the United States Department of the Army has issued a regulatory policy directive memorandum (“Directive”) requiring USACE to abide by a default time period of 60 days for states to act on WQC requests. According to the Directive, the standard one-year allowance is inconsistent with the existing USACE regulations.
The Directive makes clear and emphasizes that “absent special circumstances,” the certifying agency has 60 days to act on a WQC request, upon receipt of such request. Rather than defaulting to the statutory maximum of one year, the default time period is now 60 days unless “circumstances reasonably require” a longer time period. The Directive also requires USACE to “immediately draft guidance” and establish criteria for district engineers to identify reasonable time frames (up to one year) to act on WQC requests in light of the Directive. In establishing these time frames, USACE may consider the type of activity proposed, complexity of the site or other factors determined by the district engineer. The USACE, however, may not consider factors such as state workload or resource issues, or that the state does not have enough information to proceed.
The Directive constitutes a major change in direction for USACE and the WQC process. It remains unclear how states will respond to the shortened default time frame and the issues that are likely to arise. There is sure to be more discussion to follow on the WQC process once the time frame guidance is drafted and issued. For now, the accelerated time frame helps promote critical federal infrastructure projects and prevent delay that is all too common at the state level.