The U.S. Army Corps of Engineers (“Corps”) recently notified some permit applicants that it is placing their applications on hold due to a federal court decision invalidating a Trump-era water quality rule. This creates a period of uncertainty while the Corps decides how to adjust its permitting process in response to the decision.
On October 21, 2021, the U.S. District Court for the Northern District of California vacated and remanded the U.S. Environmental Protection Agency’s (“EPA”) Clean Water Act (“CWA”) Certification Rule (“2020 Rule”). In re Clean Water Act Rulemaking, 2021 WL 4924844. The rule was promulgated in 2020 pursuant to a Trump administration Executive Order directing EPA to issue new guidance regarding state water quality certifications under CWA Section 401, with a goal of expediting development of energy infrastructure. EPA issued the 2020 Rule, which narrowed the scope of the certification review, authorized EPA to determine the time within which a state must issue its certification, and authorized EPA to determine if state denial of certification is in compliance with the law or if it constitutes waiver. Litigation ensued.
The Biden administration subsequently announced a change in policy and included the 2020 Rule in its list of agency actions to be reviewed. In June 2021, EPA issued notice of its intent to promulgate a new rule, which would happen no earlier than spring 2023. With respect to the 2020 Rule, EPA moved the court for remand without vacatur. Multiple states (including Oregon and Washington) and others intervened, requesting remand with vacatur (i.e., vacation of the rule). The court found that the 2020 Rule was inconsistent with the U.S. Supreme Court’s decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994), which held that states have broad authority to place conditions on projects that discharge to waters of the United States. (“Not a single sentence, phrase, or word in the Clean Water Act purports to place any constraint on a State’s power to regulate the quality of its own waters more stringently than federal law might require.” Id. (Stevens, J., concurring)). Remand with vacatur was granted.
As a result of the court’s decision in In re Clean Water Act Rulemaking, the original 1971 water quality certification rules now govern the CWA Section 401 water quality certification process. Those rules give the states much broader authority than what they had under the 2020 Rule (for example, the 2020 Rule limited the definition of “water quality requirements” to only a few sections of the CWA, whereas the 1971 rules contain no such limitation). Thus, when states conduct their Section 401 certification review, they must now do so under the broader 1971 rules.
EPA’s web site has been updated to note the court’s ruling and its effect. As of this writing, the Corps Headquarters web site had not been updated, but some Corps Districts had posted short notices on their own home pages noting the court’s decision. Per EPA’s web site, the rulemaking to replace the 2020 Rule (started prior to the litigation that resulted in vacatur) will proceed. Listening sessions were held throughout the summer; next steps have yet to be announced. The agencies are likely struggling with what those next steps should look like.
The court’s decision will impact not only Corps permit applications, but any federal permit applications requiring a 401 water quality certification. The resulting agency confusion and the impending rulemaking process will likely result in delays for many parties seeking federal permits. Jordan Ramis PC will continue to monitor the situation.
Elizabeth A. Rosso is an attorney and shareholder at Jordan Ramis PC. She focuses her practice on environmental and natural resources law, administrative law, and special districts law. Contact her at firstname.lastname@example.org or (503) 598-7070.