USACE continues to review the information provided in the Biological Opinion (BO) and comments received from the public notice.  USACE final decision under Section 404 of the Clean Water Act is dependent on the WVDEP 401 Water Quality Certification.  USACE is awaiting the 401 water quality certification , before making a final permit decision under Section 404 of the Clean water Act and Section 10 of the Rivers and Harbors Act of 1899, and anticipate making these decisions by the current milestone reflected on the dashboard of June 30, 2023.

USACE continues to review the information provided in the revised BO and comments received from the most recent public notice. USACE final permit decision under Section 404 of the Clean Water Act is dependent on the WVDEP 401 Water Quality Certification.    USACE is awaiting the 401 water quality certification, before rendering a final permit decision under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act (CWA).

The USACE permit decision under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act is dependent upon the Federal Energy Regulatory Commission’s (FERC’s) completion of consultation with the Department of the Interior, Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA). When issuing a Section 10/404 permit, USACE considers any Biological Opinion (BO) and mitigation measures resulting from ESA consultation to ensure the final Section 10/404 permit decision is consistent with the analysis and requirements of the BO. Conclusion of ESA consultation was originally anticipated to be December 12, 2022, but FERC and FWS agreed to extend the formal consultation period by 60 days to allow for additional time to coordinate and review information. USACE projected the need for a minimum of 60 days after issuance of the BO to review the final BO, incorporate and address any required project changes and/or required threatened and endangered species mitigation measures into its supporting analysis within its individual permit record of decision, and to render a final permit decision consistent with the analysis and requirements of the final BO.   The FWS revised BO was issued on February 28, 2023. USACE has identified an alternative completion date of April 29, 2023, for their final Section 10/404 permit decision.

The U.S. Army Corps of Engineer’s (USACE’s) permit decision under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act (the “Section 10/404 final completion date) is dependent upon the Federal Energy Regulatory Commission’s (FERC’s) completion of consultation with the Department of the Interior, Fish and Wildlife Service (FWS) under the Endangered Species Act (ESA). When issuing a Section 10/404 permit, USACE considers any Biological Opinion (BO) and mitigation measures resulting from ESA consultation to ensure the final Section 10/404 permit decision is consistent with the analysis and requirements of the BO. Conclusion of ESA consultation was originally anticipated to be December 12, 2022, but FERC and FWS agreed to extend the formal consultation period by 60 days to allow for additional time to coordinate and review information. USACE projected the need for a minimum of 60 days after issuance of the BO to review the final BO, incorporate and address any required project changes and/or required threatened and endangered species mitigation measures into its supporting analysis within its individual permit record of decision, and to render a final permit decision consistent with the analysis and requirements of the final BO.   Furthermore, on December 5, 2022, the project sponsor provided revised information related regulated discharges, because of which USACE on December 12, 2022, issued a supplemental public notice soliciting comments on the revised information. Based on both the extension of ESA consultation and the need for additional time to review the project sponsor’s revised information submittal, pursuant to 42 USC § 4370m-2(c)(2)(d)(i)(IV), USACE timely requested Executive Director authorization to modify the Section 10/404 final completion date from February 17, 2023 to April 18, 2023. However, the Executive Director did not sign a determination on the record granting the request by the statutory deadline of January 18, 2023 (30 days prior to the posted completion date). Therefore, USACE could not modify the permitting timetable to reflect the extended completion date. Because USACE was unable to meet the posted completion date, pursuant to 42 USC § 4370m-2(c)(2)(F), USACE appropriately established an alternative completion date for the Section 10/404 action and will adhere to the statutory procedures required by section 4370m-2(c)(2)(F) until the agency takes final action on the Section 10/404 permit.