1. May 7, 2018 Milton Boyd, U.S. Army Corps of Engineers*
Clean Water Act Section Guardian of Water Quality or Political Hammer?
May 7, 2018
Milton Boyd, U.S. Army Corps of Engineers*
*The views and opinions presented here are mine do not necessarily represent those of the United States or U.S. Army Corps of Engineers

2. U.S. Army Corps of Engineers
General Authorities:
Section 404 of the Clean Water Act, 33 U.S.C. § 1344 – Authorizes the Secretary of the Army to issue permits for the discharge of fill material into waters of the United States
Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403– Authorizes the Secretary of the Army to regulate structures in navigable waters
Section 14 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 408– Authorizes the Secretary of the Army to grant permission for any alteration or occupation of certain public works when such “occupation or use is not injurious to the public interest and will not impair the usefulness of [the project]”
Mineral Leasing Act, 30 U.S.C. § 185 – Authorizes federal agencies to grant rights-of-way for pipelines through federal lands

3. U.S. Army Corps of Engineers
Water Quality Certification, Clean Water Act, Section 401, 33 U.S.C. § 1341
“Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . .” 33 C.F.R. § 1341(a)(1)
“No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence. No license or permit shall be granted if certification has been denied by the State, interstate agency, or the Administrator, as the case may be.” Id.

4. U.S. Army Corps of Engineers
Corps Regulations related to State Water Quality Certification:
“No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act.” 33 C.F.R. § 325.2(b)(1)(addressing Individual Permits).
State can issue 401 Water Quality Certifications when the Nationwide General Permits are issued or when the Corps verifies that an activity meets the terms for Nationwide Permit authorization. Must have State certification or a waiver for Nationwide Permit authorization. See 33 C.F.R. § 330.4(c)(1)-(7)