Army Corps of Engineers' Memo Update
With minimal fanfare, the U.S. Department of the Army is doing its part to reduce the amount of time needed for infrastructure proposals, such as natural gas pipelines, to obtain federal regulatory approvals. On December 13, 2018, Assistant Secretary of the Army for Civil Works, R.D. James, issued a policy directive providing guidance to the U.S. Army Corps of Engineers' (Corps) districts and divisions to help them achieve nationwide consistency and adherence to the Corps’ existing regulations, policy, and guidance in three areas.
a) the duration of permits and jurisdictional determinations;
b) setting reasonable timeframes for states issuing water quality certificates under Section 401 of the Clean Water Act (WQC); and
c) the application of the 404(b)(1) guidelines (Guidelines) to proposed development projects.
Permit Duration and Jurisdictional Determinations
To avoid delaying multi-year construction projects, where permits and delineations expire before construction is completed, and therefore need to be reissued, which can cause work stoppages and unneeded expense, the memorandum calls for the Corps' District Engineers to ensure that each permit is granted for a time period sufficient for the permittee to complete the work specified in its permit application. Likewise, jurisdictional determinations and delineations are to remain valid for the duration of the permit.
The memorandum encourages the Corps' districts and divisions to take a more active role in monitoring states to ensure they decide within a "reasonable period" whether to grant, deny or deem waived Clean Water Act Section 401 Water Quality Certifications (WQC), prerequisite to the Corps’ issuance of a 404 permit.
The memorandum reinforces and reminds the Corps' regions that under the Corps’ existing regulations, reasonable means 60 days following receipt of a request for a WQC, unless the Corps determines that a longer period is reasonable. Failure by a state to act within the reasonable period determined by the Corps can result in the Corps’ deeming waiver to have occurred and thus allowing it to act on the pending 404 application. See 33 C.F.R.§ 325.2.
The memorandum notes that despite the existing regulation, it has become "standard practice" for District Engineers to give states an entire year (which is the maximum allowed under CWA Section 401) to act on a request for WQC. The memorandum eschews that practice in favor of the "default" time frame of 60 days unless the District Engineer determines that circumstances reasonably require a longer timeframe.
To effectuate his directive, James directed the Corps to produce draft guidance within 45 days establishing criteria for District Engineers to identify reasonable timeframes for states to provide their decisions on 401 certification requests. According to the memorandum, reasonableness can be based on the type of proposed activity or complexity of the site, but cannot be premised upon state workload, resource issues, or lack of sufficient information. While Corps' regulations require the agency to take into account information provided by a state in determining a reasonable timeframe, James' memorandum makes clear that the ultimate decision resides with the District Engineer.
Interestingly, James’ memorandum predates the DC Circuit decision in Hoopa Valley Tribe v. FERC, 2019 U.S. App. Lexis 2454 (DC Cir. 2019), which chastised FERC for failure to take responsibility as the lead agency in a hydropower licensing project in determining when a reasonable period of time had elapsed.
The United States Environmental Protection Agency Administrator, in conjunction with the Secretary of the Army, established guidelines interpreting Section 404(b)(1) of the Clean Water Act. These guidelines, set forth in 40 CFR § 230, are intended to guide the Corps in conducting an alternatives analysis on permit applications in order to avoid unnecessary filling of wetlands and other aquatic resources, as well as prohibit discharges where less environmentally damaging practicable alternatives exist.
Part and parcel of the 404(b)(1) analysis requires the permit applicant to establish the project purpose and need. This includes providing a definition that is specific enough to address the applicant’s needs and geographic area of consideration for the proposed project, but not too narrow to precluded a proper evaluation of both on-site and off-site practicable alternatives. The application of this approach has been challenged in situations where the project purpose is somewhat open-ended, for example where a proposed development activity may not have all relevant information identified yet.
James points out in the memorandum that "a certain amount of flexibility is reserved for the decision-maker in applying these Guidelines and making a determination [to] whether the requirements have been satisfied. Therefore, a certain level of unknown regarding proposed project specifics may be acceptable based in such flexibility, as long as an appropriate alternatives analysis may be accomplished."
In order to circumvent the inconsistent approaches taken between Corps' districts in making decisions about how much information is enough to proceed with their alternatives analysis, the memorandum requires that District Engineers use the flexibility envisioned in the Guidelines to make determinations as to the scope of alternatives to be considered, the level of scrutiny required and the amount of specificity required to perform the analysis, requiring more detail and a wider range of alternatives for projects proposing greater adverse environmental effects.
James directed the Corps to draft guidance within 45 days of the memorandum’s issuance based upon its three directives, consistent with existing statute and regulation. While 45 days have passed since James issued the memorandum, it has not been formally published, and we are still waiting for the Corps to produce the draft guidance. We will provide a further update when the guidance becomes available.