27 April 2022 – Water Quality Certifications and USACE Permitting

HQ USACE Regulatory
Published April 27, 2022

On April 6, 2022, the U.S. Supreme Court issued a stay of the October 2021 order by the U.S. District Court for the Northern District of California that vacated EPA’s 2020 Clean Water Act Section 401 Certification Rule. The stay of the vacatur applies nationwide. Therefore, the CWA Section 401 certification process is once again governed by the CWA section 401 certification regulations promulgated by EPA in 2020. Districts will confer with certifying authorities regarding water quality certification decisions they issued on or after April 6, 2022 to determine whether they would like us to review those decisions under EPA’s 2020 Rule, or if they would like us to extend the reasonable period of time (when possible within the one year statutory limit) to allow the certifying authority to process the WQC request under EPA’s 2020 Rule. Permit actions or general permit verifications that were finalized prior to April 6, 2022 do not have to be revisited. Additional information regarding the stay can be found on EPA’s website at: https://www.epa.gov/cwa-401/qa-stay-2020-rule-vacatur