March 25, 2019

March 25, 2019

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Federal Guidance on Section 404 Permitting Under Development

A recently disclosed internal memorandum from the Assistant Secretary of the Army for Civil Works details a nascent effort to issue guidance that achieves “nationwide consistency” on a series of issues that are routinely raised in the permitting of dredge and fill activities under Section 404 of the Clean Water Act (CWA).  The memorandum, addressed to the Chief of Engineers of the United States Army Corps of Engineers (USACE), sets forth an internal directive requiring the USACE to draft guidance on three topics: 

  • The appropriate duration of jurisdictional determinations, jurisdictional delineations and individual permits issued under CWA, Section 404;
  • Timelines for state water quality certifications under CWA, Section 401; and
  • The level of specificity in project descriptions and activities necessary for the alternatives analysis for individual permits conducted pursuant to the CWA, Section 404(b)(1) Guidelines. 

The memorandum recognizes that, over time, the USACE’s districts have inconsistently applied the Section 404 implementing regulations.  For example, the substantive portion of the memorandum strikingly opens with the observation that some districts have issued five-year (5) dredge and fill permits for projects involving fifteen (15) years of dredge and fill activity, causing permittees to go through additional administrative proceedings, and in some cases, submitting new applications in order to obtain permit coverage for the entire length of a project.  In directing the USACE to draft guidance on this, and other issues, the Assistant Secretary seeks to correct erroneous applications of the Section 404 regulations and to provide for nationwide consistency.

The memorandum requires the USACE to prepare nationwide guidance that clarifies the following points:

  • Duration of Individual Permits, Jurisdictional Determinations, and Jurisdictional Delineations:  District Engineers will be directed to ensure that each Section 404 individual permit is granted “for a time period sufficient for the permittee to complete the work specified in the application.”  Further, jurisdictional determinations and delineations are to be aligned with the duration of the permit.  The alignment of permit duration with jurisdictional determinations and delineations also will apply to timely extension requests—including extension requests that are pending when the final guidance is issued.
  • Timelines for Section 401 State Water Quality Certifications:  A key hurdle in the Section 404 permitting process is for the applicant to document that each relevant state has certified that the proposed dredge and fill activity will comply with state water quality standards under CWA, Section 401.  By statute, the review and certification period may take no longer than one (1) year.  However, the USACE’s existing regulations have adopted a shorter, presumptive sixty (60) days review period, unless the District Engineer determines that a shorter or longer period is reasonable under the circumstances.  The draft guidance will clarify that, absent special circumstances, the default timeframe for a state to complete its water quality certification review is sixty (60) days from the state’s receipt of the applicant’s request for certification.  Criteria governing any request to extend the review period beyond sixty (60) day also will be identified as part of the guidance.  On this latter point, the memo explicitly excludes workload or resource constraints as grounds for a longer review period.
  • Specificity of Project Descriptions:  The USACE’s Section 404 individual permit decisions are preceded by a review of whether there are “practicable alternatives” to the proposed dredge and fill activity that achieve the overall project purpose while avoiding/minimizing impacts to waters of the United States.  This review process can be highly fact-intensive—requiring an appropriate level of detail regarding the proposed activity.  Conversely, the alternatives analysis still must be bounded by the level of information that is reasonably available.  Here, the USACE has been directed to develop guidance that allows a level of uncertainty regarding specifics of the proposed project as long as an appropriate alternatives analysis can be accomplished.  One example given is that it may not be necessary for the applicant to disclose the specific tenants occupying a proposed project, when the general type of tenant is sufficient to understand the nature of the dredge and fill activity.  

The format of this pending guidance is not pre-determined and the USACE has discretion to provide guidance in a variety of formats.  The most likely approaches would be either a formal nationwide guidance directive to District Engineers or a Regulatory Guidance Letter.  The USACE’s timeline for action also is uncertain.  When issued, the memorandum contemplated a forty-five (45) day period for preparation and submission of the draft guidance for review by the Assistant Secretary—a period that ended, approximately, at the end of January 2019.  An updated timeline has not been announced.

This effort should be watched closely.  The issues covered in the memorandum—the duration of permits and related delineations/determinations, the timing of associated reviews, and information sufficiency—are foundational to consistency in a federal permitting process.  By providing clarification and ensuring consistent application of permitting procedures, across all USACE districts, the pending guidance will provide an important measure of certainty that benefits the Section 404 permitting program.

Update on  Proposal to Revise the “Waters of the United States” Definition

Today’s Federal Register included the formal publication of a proposed rule revising the definition of “Waters of United States” under the Clean Water Act.  Van Ness Feldman previously issued an alert regarding this proposed rule in December 2018.  The comment deadline for this proposed rule is April 15, 2019.  

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Sophia Amberson, Environmental Attorney, Van Ness Feldman Law Firm, Endangered Species Act, Clean Water Act
Associate

Sophia provides counsel to both public and private sector clients on various environmental, tribal, and natural resource matters under the SEPA/NEPA, Endangered Species Act, Clean Water Act, and Marine Mammal Protection Act.

During law school, Sophia served as an extern to Honorable Robert S. Lasnik in the U.S. District Court for the Western District of Washington. She also interned in D.C. at the U.S. Coast Guard Headquarters, where she worked with the Office of International and Maritime Law on environmental law issues. Sophia was an Associate...

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Brent Carson, Van Ness Feldman Law Firm, Seattle, Energy, Environment and Real Estate Law Attorney
Partner

Brent provides strategic advice and critical support to clients with complex land development and real property issues. He has in-depth knowledge of the local, state, and federal land use and environmental entitlements process including comprehensive plan amendments, rezones, master plans, development agreements, wetlands and in-water construction permits, endangered species consultation, mitigation banks, shorelines, SEPA/NEPA compliance, road vacations, and impact fees. His litigation practice includes defense of environmental enforcement actions and development approvals before local and state administrative tribunals and in court, as well as resolving real property disputes involving purchase agreements, leases, loans, easements, covenants, trespass, and boundary issues. 

Prior to his law practice, Brent worked for the Puget Sound Clean Air Agency in Washington State, where he helped create one of the nation’s first air pollution mitigation banking programs.

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Duncan M. Greene, Van Ness Feldman Law Firm, Seattle, Environmental and Real Estate Law Attorney
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Duncan assists private and public clients with a wide range of land development and real property issues. He provides strategic advice and support to clients in planning and permitting large, complex projects in the energy, transportation, and natural resource sectors. He has in-depth knowledge of local, state, and federal land use and environmental entitlements processes including NEPA/SEPA compliance, wetlands and in-water construction permits, endangered species consultation, shorelines approvals, mitigation banks, development agreements, and planning and zoning...

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Jenna R. Mandell-Rice, Van Ness Feldman Law Firm, Seattle, Environmental, Real Estate and Litigation Law Attorney
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Jenna’s practice focuses on land use and environmental law.  She regularly counsels clients on the siting and permitting of development projects and has experience counseling clients on land use, environmental, and natural resource matters under the Growth Management Act, SEPA/NEPA, Clean Water Act, and the Endangered Species Act.

Prior to joining the firm, Jenna was an associate in K&L Gates’ Washington DC office. During law school, she served as a law clerk for the Council on Environmental Quality (CEQ), an office within the Executive...

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Joseph B. Nelson, Van Ness Feldman Law Firm, Washington DC, Environmental and Energy Law Attorney
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Joe has over twenty years of experience providing counsel to clients involved with linear and site-specific energy, natural resource, and water resource projects as they navigate the myriad regulatory and environmental laws governing project development and operations. His practice includes representation of clients before federal agencies and commissions including the Federal Energy Regulatory Commission, U.S. Fish and Wildlife Service, National Marine Fisheries Service, National Park Service, U.S. Bureau of Reclamation, Department of Energy and Department of the...

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