A USACE memo to the agency, directing District Engineers to restrict the timeline for state review for 401 certification to 60 days. States may request additional time, but the decision is entirely at the discretion of the District Engineer, and extensions may not be granted if requests are “based on workload or resource issues or that [states] do not have enough information to proceed.” There are more questions raised by this memo than answers provided.
It is current Corps practice to give states a full year to complete certification before the states will be deemed to have waived their authority due to inaction. Additionally, the memo asserts that the Corps policy will be that timelines for state review will commence upon “receipt” of a “request for certification” (without defining those terms). Currently, the Corps generally does not consider the timeline for state review to have begun until the District Engineer verifies “that the [state] has received a valid request for certification.” 33 C.F.R. 325.2(ii).
USACE 401 Memo
