Vol. 29, No. 9  ●  November 8, 2021

Pause on Issuance of New Individual Permits and Some Nationwide Permit Authorizations

The U.S. Army Corps of Engineers has temporarily stopped issuing any new Individual Permits or authorizations under the 16 Nationwide Permits (NWPs) that were established in 2021. The vacatur - the cause for this regulatory pause - stems from the October 21, 2021 U.S. District Court of the Northern District of California decision regarding Clean Water Act Section 401 and the U.S. Environmental Protection Agency’s related authority. The Corps is hopeful that it can provide guidance in the coming days, given the implications of this pause for the regulated community.

The Corps, the U.S. Department of Justice, and the Environmental Protection Agency are working together to develop guidance addressing issuance of the permits relying on the 2020 Section 401 Certification.

Authorizations issued under State Programmatic General Permits and the Nationwide Permits established in 2017 are not affected by the vacatur; however, the guidance from the agencies may also simultaneously address the associated implications for the renewal of the 2017 NWPs.

The EPA was already reviewing the Section 401 Certification to address their concerns for future policy making, so this new development could be an interim step in a larger future process.

If you have questions regarding the implications of this change for your current and future projects, please contact your project manager, or

Check out past issues in the Field Notes Archive.

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