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New Federal Nationwide Wetlands Permits Suspended


New Federal Nationwide Wetlands Permits Suspended

How a new court ruling is halting the use of new NWPs

November 10, 2021
Aerial view of wetlands

Though builders and developers rely on nationwide wetlands permits (NWPs) for an easier authorization process to begin projects that could potentially impact federally regulated wetlands, a new court ruling is putting a pause on the issuance of new permits. 

As the Northern District of California vacates the Trump Administration’s changes to the Clean Water Act (CWA) Section 401 Certification Rule, the U.S. Army Corps of Engineers (the Corps) is suspending the distribution of any new Section 404 permits, the NAHB reports. Builders and developers can, however, use existing NWPs for current projects.

The permit stoppage is due to a procedural failing regarding the Corps’ programmatic certification of the recently reauthorized NWPs under the CWA Section 401 Certification Rule.

The Section 401 Certification Rule requires states and tribes to certify the issuance of any federal permit that authorizes a “discharge” into a “waters of the U.S.” will not prevent or delay the waterbody from obtaining its water quality standards.

Because the NWPs authorize a “discharge,” the Corps must obtain a 401 certification from each state before permittees in that state can use an NWP.

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