For people anxiously anticipating the Herculean efforts of President Joe Biden's administration to effect sweeping changes in how the U.S. Army Corps of Engineers fulfills its federal obligations—pause and consider the following.
The mission of the Corps is to “deliver vital public and military engineering services; partnering in peace and war to strengthen our nation’s security, energize the economy and reduce risks from disasters.” That won’t change because there’s a change in administration.
Further, efforts at reorganizing the Corps by moving it out of the U.S. Dept. of Defense into another federal agency, as was proposed by those under Donald Trump, have essentially died on the vine and it’s doubtful his successor would attempt to revive them.
Requirements and procedures do not change overnight.
That’s especially true in the Corps, where change depends on a multitude of variables firmly rooted in law, statute, agency rule-making, policy, engineering regulations and circulars—many of which are not within their own unique authority to modify. The Corps must follow prescribed rules and procedures. Not doing so will result in agency decisions being legally challenged as arbitrary and capricious.
In short, the Corps mandate to protect the nation's aquatic resources and navigation capacity, while allowing reasonable development through fair and balanced decisions, will stay the same in the near-term.
Still, speculation abounds about impending regulatory rollbacks, rescinding of executive orders or Congress invoking the Congressional Review Act to nullify Trump administration rules that are within 60 session days of being finalized.
However, the trickle-down consequences of these conceivable actions can take months or years to be completed. And as Corps-watchers saw in the years following the transition from the Obama presidency to Trump, litigation and judicial review have a far-reaching impact on how fast an administration can implement initiatives. Considering this, potential Corps applicants would be well-served to conduct a deliberate decision-making process about if or when to seek a regulatory decision.
To be sure, the process of achieving a successful permit outcome is challenging if not at times frustrating. Indeed, that frustration can be amplified during political transitions. Uncertainties about the future administration's direction and the priorities of yet-unnamed agency leaders assuredly generate anxiety among businesses that depend on a decision or supporting action.
One thing is certain: the nation’s current laws and regulations regarding requirements to reach an agency decision continue to govern until they are changed through an often lengthy and politically contentious process. Equally certain, interested third-party groups will legally challenge agency decisions they believe are non-compliant with governing laws and regulations.
With that, if applicants anticipate that future regulations may be more accommodating, they will need to assess a project’s urgency against any potential delays while waiting for the wheels of government to turn. On the other hand, if applicants assess future regulations to be less accommodating, immediately advancing a project under what is currently in place may be the most prudent course of action. But remember that change in either scenario is not a sure thing.
While the immediate focus of attention is on a new administration, it’s important to acknowledge that similar processes also exist at the state and local levels. Moreover, Corps decisions often require prerequisite actions or decisions by state and local entities, such as for U.S. Clean Water Act Section 401 Water Quality Certificates and matters covered by Section 106 of the National Historic Preservation Act of 1966. Synchronizing these required and concurrent processes is a task that necessarily falls on the applicant to manage and a new administration’s impact on them is likely minimal.
Even when the political environment is stable and clear, uncertainty in either outcome or length of time to reach a decision can stifle an applicant’s ability to make prudent and timely business decisions and commitments. Being able to accurately follow and forecast progress enables project management to make well-informed, important project decisions.
While an applicant can decide to leave the process entirely in the hands of the lead agency, that may not be the best course to take.
Recall Benjamin Franklin’s wise paraphrasing of a 17th century English dissident when Franklin, writing as Poor Richard in his almanac of 1736, stated that “God helps them that help themselves.” An informed, experienced and productively prepared permit applicant is essential to efficiently negotiating the process to a decision. Regardless of the administration in the White House, an engaged applicant will most likely succeed and be genuinely welcomed by the agency charged with managing that process.
Maj. Gen. (ret) Rick Stevens, former deputy commander of the Army Corps of Engineers, and Brig. Gen. (ret) J. Richard Capka, former commander of the Corps South Atlantic and South Pacific Divisions, are consultants at the environmental permitting firm Dawson & Associates. Contact them at RStevens@dawsonassociates.com and JRCapka@dawsonassociates.com.