For the second time in just 60 days, the U.S. Army Corps of Engineers (the Corps) has suspended the issuance of any new Section 404 nationwide wetlands permits (NWPs) as a result of a court ruling on Oct. 21 by the Northern District of California vacating the Trump administration's changes to the Clean Water Act (CWA) Section 401 Certification Rule.
However, builders and developers can still use existing NWP permits. Builders and developers rely on NWPs for a much faster and cheaper authorization process for projects that may impact federally regulated wetlands.
For example, a 2002 study found that it takes an average of 313 days and $28,915 to obtain an NWP, while the average time and cost to secure an individual permit were 788 days and $271,596.
The permit stoppage is due to a procedural failing regarding the Corps' programmatic certification of the recently reauthorized NWPs under the CWA Section 401 Certification Rule. The Section 401 Certification Rule requires states and tribes to certify the issuance of any federal permit that authorizes a "discharge" into a "waters of the U.S." will not prevent or delay the waterbody from obtaining its water quality standards.
Because the NWPs authorize a "discharge," the Corps must obtain a 401 certification from each state before permittees in that state can use an NWP. By contrast, for the far less frequently sought individual wetlands permits (IPs), the applicant (and not the Corps) is responsible for obtaining their own CWA 401 certifications from their state agency themselves, which adds to the costs and complexity of IPs versus NWPs wetlands permits.
The Corps typically issues around 50,000 NWPs annually, while less than 2,500 individual wetlands permits are typically sought in any given year.
The Northern District of California essentially ruled that the Environmental Protection Agency did not need to find that the 401 certification rule was illegal before rescinding it. In other words, the court had "doubt" that the 401 certification rule was legal, but did not go so far as to determine it was not legal.
Following the Northern District of California court ruling, the Corps ceased the use of NWPs until it receives guidance from the Department of Justice interpreting the scope and impact of the court's decision. More than two weeks have passed, and no guidance has been forthcoming. Moreover, the Corps has not notified the public that the agency has halted the use of all NWPs.
NAHB staff continues to monitor and update developments by the Corps regarding this court ruling, and encourages NAHB members to look for official regulatory guidance from the Corps headquarters on its webpage.
For more information, contact Michael Mittelholzer at NAHB.