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New Guidance Will Benefit Section 404 Permitting and Project Development

Looking to accelerate project delivery and lower project costs, the U.S. Army Corps of Engineers (Corps) continues to take steps to speed up Clean Water Act (CWA) dredge-and-fill permitting and achieve “nationwide consistency” on common stumbling blocks in the Section 404 review and authorization process.  The Corps recently finalized guidance to USACE District Engineers on “compensatory mitigation credit” release schedules for mitigation banks and on using consistent criteria to establish service areas for both mitigation banks and in-lieu fee programs.  The Corps is also preparing nationwide guidance on several of �鶹��Ƶ’s key regulatory reform issues: the duration of permits and related determinations; the timeline for other “cooperating” resource agencies to complete their reviews and related authorizations; and the sufficiency and scope of the “practical alternatives” evaluation. 

The Corps’ newest guidance – “” (Regulatory Guidance Letter (RGL) 19-01) – applies to mitigation banks and in-lieu fee programs not-yet-approved and allows for sponsors of already approved projects to amend their existing mitigation banking instruments.  According to the Corps’ research, permit processing timeframes are reduced by approximately 50 percent with the use of mitigation bank or in lieu fee credits.  RGL 19-01 will provide a substantial benefit to project proponents by facilitating the release of more credits and making them available for sale to permittees more quickly, following successful construction of a mitigation bank. The Corps anticipates this will lead to more mitigation credits being sold at a competitive, fair and comparable prices.  In addition, the guidance makes clear the Corps should ensure that the same criteria are used within each District to establish similar service areas for mitigation banks and in-lieu fee programs.

Critics warn that the guidance (RGL 19-01) could undercut accomplishments pursuant to the wetland mitigation program, which is largely governed by the joint U.S. Environmental Protection Agency (EPA) and Corps’ .  As previously reported by �鶹��Ƶ, the agencies are (a proposal was expected in March 2019) to reduce the amount of time it takes to review and approve banks and in-lieu fee programs and oversee their operation. 

More Section 404 Permitting Improvements in the Works

�鶹��Ƶ has been made aware of a policy directives memorandum from the U.S. Department of the Army’s Assistant Secretary for Civil Works R.D. James that directs the Corps to draft guidance for all its Districts and Divisions specifically covering the following areas; these areas also have been top �鶹��Ƶ reform priorities: 

• Permit Duration and Jurisdictional Determinations (JD) – Grant each [individual] permit for a time period sufficient for the permittee to complete the work specified in the application.  District Engineers shall align the duration of all JDs and delineations with the duration of the issued authorization or permit (and they shall remain valid for the duration of any subsequent permit time extensions obtained before the expiration of the permit).
• State Water Quality Certifications (CWA Section 401) – The time period for a state’s review under Section 401 begins upon receipt of the request by the applicant.  The default time period will be sixty (60) days unless the District Engineer establishes that circumstances “reasonably require” a longer period of time.  USACE shall draft guidance to establish criteria for identifying (and setting) reasonable timeframes beyond the 60 days; the final decision on timeframe rests with the District Engineer.
• Application of “Least Environmentally Damaging Practicable Alternative” (LEDPA) Guidelines (CWA Section 404(b)(1)) – District Engineers shall ensure that in performing the alternatives analysis required under the CWA that they are using the flexibility envisioned in the LEDPA Guidelines in making determinations on the scope of alternatives that should be considered and the specificity of information required in performing the analysis.

�鶹��Ƶ is encouraged to see that the Corps continues to do its part to improve performance of federal permitting and review of important infrastructure projects and to ensure “consistency and predictability” in the Section 404 permit program.  �鶹��Ƶ previously published an update on actions that the Corps had completed in 2018; click here to get the full story.  �鶹��Ƶ staff and its environmental leadership are keeping an open line of communication with Corps regulatory staff. �鶹��Ƶ’s regulatory reform recommendations are seeing positive results.

For more information, please contact �鶹��Ƶ’s Leah Pilconis at pilconisl@agc.org.