The U.S. Army Corps of Engineers’ (USACE) has suspended issuance of 16 Clean Water Act (CWA) Section 404 nationwide permits (NWPs). This decision will affect both the residential and commercial construction industries. Both HBAV and NAHB have communicated the urgency of reaching a resolution to USACE headquarters and requested a timeline for again issuing permits.
The USACE move during the week of November 1, 2021 responds to a decision on October 21, 2021 by the U.S. District Court for the Northern District of California to vacate the Trump administration’s 2020 CWA Section 401 Certification Rule (2020 Rule). By vacating the 2020 Rule, the Court’s decision reinstates an existing rule from 1971. Though USACE has not issued a formal notice about the suspension, the 16 NWPs were finalized on March 15, 2021 (after the Trump administration finalized its 2020 Rule). Thus, USACE seems to be suspending NWPs that rely on 401 Certification as defined by the 2020 Rule.
The USACE decision affects residential and commercial construction in several ways. First, NWPs are “streamlined” federal wetland permits that take less approval time compared to more onerous individual permits. In addition, 401 Certification ensures that states “certify” federally issued wetland permits so that permittees’ projects do not result in an exceedance of state water quality standards. Finally, the 16 affected permits include many NWPs that our industries rely on for day-to-day activities and project completion such as #29 (residential developments) and #39 (commercial and institutional developments).
To address the problem, USACE is consulting with the Department of Justice to interpret the Court’s decision. HBAV and NAHB are hopeful that USACE will quickly provide guidance to its District Offices about how to reinstate issuance of the NWPs.
Because this is a federal issue, and not an issue specific to Corps’ District Offices in Norfolk, Wilmington, Huntington, etc., guidance must come from headquarters. In addition, we have requested a timeline for issuing guidance, but have yet to receive a response.
USACE should issue guidance on Civil Works’ Regulatory Announcements page at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/. In addition, HBAV will let members know as soon as we have more information to report.
For more information, please also review NAHB’s statement at https://nahbnow.com/2021/11/corps-of-engineers-suspends-issuance-of-all-new-federal-nationwide-wetlands-permits/.
For more information from HBAV, contact Evan Branosky, HBAV Associate VP Government Affairs at ebranosky@hbav.com or (804) 643-2797, Ext. 6.
