On February 5, 2019, a copy of a December 13, 2018 policy directive memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works to the U.S. Army Corps of Engineers (“USACE”) Chief of Engineers was released.  Notably, the memorandum directs the USACE to adhere to a “default time period” of 60 days for states to act on a request for water quality certification under Clean Water Act (“CWA”) Section 401 with regard to USACE’s issuance of dredge and fill permits under CWA Section 404.  The policy memorandum also requires USACE to “immediately draft guidance” to establish criteria for USACE District Engineers to identify circumstances that may warrant additional time for states to decide on an application for water quality certification.

The policy directive memorandum, which was signed by Assistant Secretary of the Army R.D. James, explains that under current USACE regulations, a state has 60 days following receipt of a request for a Section 401 certification to act on the request or the state will be deemed to have waived certification.  The memorandum notes that despite this regulatory requirement, it is “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 water quality certification.  While USACE regulations allow District Engineers to provide states shorter or longer time frames for states to issue Section 401 certifications when reasonable, the memorandum establishes a “default” time frame of 60 days unless the District Engineer determines that circumstances reasonably require a longer time frame.  USACE is directed by the memorandum to produce draft guidance within 45 days that establishes criteria for District Engineers to identify reasonable timeframes for states to provide their decisions on Section 401 certification requests.  According to the memorandum, reasonableness can be based on the type of proposed activity or complexity of the site, but not on state workload, resource issues, or lack of sufficient information.  Furthermore, while USACE regulations state that information provided by the state will be taken into account in determining a reasonable timeframe, the memorandum makes clear that the ultimate decision resides with the District Engineer.

The memorandum is intended to advance the Administration’s priority of reducing the time period for federal regulatory approvals for infrastructure and other developmental proposals and comes at a time when states’ administration of CWA Section 401 is under greater scrutiny by the courts.  States’ timelines for approval of Section 401 certification requests recently have been scrutinized by the U.S. Court of Appeals for the District of Columbia Circuit (see January 30, 2019 edition of the WER and June 26, 2017 edition of the WER), the U.S. Court of Appeals for the Second Circuit (see March 20, 2018 edition of the WER), and FERC (see, e.g., March 27, 2018 edition of the WER and January 16, 2018 edition of the WER).  U.S. Senator John Barrasso also introduced a bill in 2018 that would, among other things, require states to publish clear requirements for Section 401 certification requests and notify Section 401 applicants within 90 days after receiving a request for certification what information is required for the request to be deemed complete.