Energy and Environment Monitor

Corps of Engineers Rejects Some State Certification Conditions on Nationwide § 404 Permits in WV and Ohio

March 18, 2021

In January, the Corps of Engineers reissued 12 existing Nationwide §404 permits (“NWPs”) and issued 4 new ones. As part of this effort, the Corps split NWP 12 (formerly for all utility lines) into three new NWPs: 12 (oil or natural gas pipelines); 57 (electric utility lines and telecommunications) and 58 (utility line activities for water and other substances). These 16 NWPs took effect on March 16, 2021. The remaining existing 40 NWPs that were not reissued this year will be reviewed by the Corps later this year or early 2022.

The 16 reissued or new NWPs are:

NWP 12 – Oil or Natural Gas Pipeline Activities
NWP 21 – Surface Coal Mining Activities
NWP 29 – Residential Developments
NWP 39 – Commercial and Institutional Developments
NWP 40 – Agricultural Activities
NWP 42 – Recreational Facilities
NWP 43 – Stormwater Management Facilities
NWP 44 – Mining Activities
NWP 48 – Commercial Shellfish Mariculture Activities
NWP 50 – Underground Coal Mining Activities
NWP 51 – Land-Based Renewable Energy Generation Facilities
NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
NWP 55 – Seaweed Mariculture Activities
NWP 56 – Finfish Mariculture Activities
NWP 57 – Electric Utility Line and Telecommunications Activities
NWP 58 – Utility Line Activities for Water and Other Substances

On March 5, 2021, the Corp’s Huntington District published these 16 NWPs along with the State Clean Water Act §401 certification conditions accepted from the West Virginia DEP and the Ohio EPA. For the first time we can recall, the Corps rejected some of WVDEP’s proposed certifications and declared that OEPA had waived its right to impose 401 certification conditions altogether.

Under Section 401 of the Clean Water Act, proponents of federal projects or permits are required to solicit a certification from the State that discharges from the federal activities will comply with State water quality standards. Here, the Corps sought that input from WVDEP and OEPA since they are the issuers of the NWPs. In response to §401 certification requests, states are required to certify, deny certification or waive certification.

In July 2020, EPA issued new water quality certification rules. See 85 FR 42210 (July 13, 2020). Those rules specified that State certification agencies should restrict the conditions on their certification to those necessary to ensure that discharges complied with state water quality standards, and should explain why those conditions are necessary. 40 CFR §121.7(d). Federal agencies were authorized by the new rule to declare a “waiver” by the State for failure to comply with these requirements. 40 CFR § 121.9(b).

In response to the Corps’ new and reissued NWPs, WVDEP tendered its §401 certification conditions to WVDEP. WVDEP “denied” certification for NWPs 21 (surface coal mining), 50 (underground coal mining), 29 and 39 (residential developments and commercial/institutional developments subject to Section 10 of Rivers & Harbors Act), and 40 (agricultural activities). Those seeking to use these NWPs may still use them, but must first obtain an individual certification from WVDEP.

The Corps also interpreted EPA’s new §401 certification rules to prohibit State 401 conditions allowing states to “reopen” certification. Special Condition A to WVDEP’s certification of NWP 12 reserved the right to require individual certifications in WVDEP’s discretion in the following five instances:

Pipeline crossings on a Section 10 river (unless the bore is greater than 100 feet below the stream bed on the Ohio River mainstem, or greater than 50 feet below the stream bed on all other Section 10 waters);
Utility lines within wetlands that would use or consider the use of herbicides for right-of-way maintenance;
Projects proposing permanent impacts to any stream identified in WQC Standard Condition 15 A, B, and C;
Cumulative permanent impacts to stream(s) totaling greater than 300 linear feet and cumulative wetland impacts exceeding 1/10 acre;
Pipelines carrying separated natural gas liquids, unless installed with an automated system which will indicate a sudden loss of pressure.

Likewise, in Special Condition F the WVDEP reserved the right to later require an individual certification of the use of NWP 12 for water withdrawal. The Corps considered these reservation of rights to be impermissible “reopeners.” EPA’s §401 rules suggest that certification conditions that do not meet EPA’s criteria should be considered “waived” by the federal permitting agency (40 CFR § 121.9). However, rather than treat West Virginia’s “reopeners” as a waiver, the Corps treated them as a “denial” of certification for the projects falling within the scope of the “reopeners” and required project proponents to get either an individual certification or a waiver from WVDEP. The Corps did the same to similar conditions on NWPs 48,51,52 and 57. This fact will make use of these NWPs more complicated for project proponents who may now need to apply to WVDEP for State 401 certifications or waivers.

For Ohio, the Corps simply declared that OEPA’s certification conditions were waived altogether. Apparently, OEPA was unable to meet the deadlines imposed by the Corps on completing the certification process. In the past, the Corps has routinely accepted “late” State 401 conditions, but EPA’s new rules emphasized that States have an obligation to complete within such reasonable period of time as the federal permitting agency establishes.

Here is a Table of the accepted and declined §401 conditions placed on the NWPs by WVDEP.

Here is a list of the NWPs as approved for use in West Virginia.

Here is a list of the NWPs as approved for use in Ohio.

Attorneys

Robert G. McLusky