TO WHOM IT MAY CONCERN: The purpose of this notice is to advise the public that the United States (U.S.) Army Corps of Engineers, South Pacific Division (SPD), has approved the San Francisco District to use the enclosed special emergency processing procedures in the State of California in accordance with 33 CFR § 325.2(e)(4) and Executive Order (E.O.) 14156, which was issued on January 20, 2025 under the President’s legal authorities, including the National Emergencies Act (50 U.S.C. 1601 et seq) and section 301 of title 3, United States code. These special emergency processing procedures have been established pursuant to Sec. 4 of 14156 for activities associated with the identification, siting, production, transportation, refining, and generation of domestic energy sources, including energy infrastructure, that require Department of the Army authorization under Section 10 of the Rivers and Harbors Act (RHA) of 1899, Section 404 of the Clean Water Act (CWA), and/or Section 103 of the Marine Research, Protection, and Sanctuaries Act (MRPSA) of 1972, as amended, and alterations of a USACE civil works project under 33 U.S.C. 408 (Section 408).
For the reasons stated in Sec. 1 of EO 14156, the President has found that insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security, and foreign policy and declared a national emergency on the basis of those findings. The President has found in Sec. 4 of EO 14156 that significant economic hardship could be experienced if corrective action requiring a permit or review of a Section 408 request is not undertaken within a time period less than the normal time needed to process the application under standard permitting procedures for activities meeting the terms of the declared emergency, and has directed agencies to use, to the fullest extent possible and consistent with applicable law, emergency Army Corps permitting provisions to facilitate the Nation’s energy supply.
The purpose of this public notice is to announce the establishment of the special emergency processing procedures for the purposes of E.O. 14156 and 33 CFR 325.2(e)(4) to review applications for regulatory permits under Section 10 of the RHA, Section 404 of the CWA, and Section 103 of MRPSA and requests for permission under Section 408 as directed by Sections 2 and 4 of EO 14156 and provide information to the public about those special emergency processing procedures. A determination of whether a specific permit application or Section 408 request qualifies for the emergency procedures in response to the national emergency declared in EO 14156 will be made individually based upon a case-specific evaluation of each request.
If you have any questions concerning the special emergency processing procedures, please contact the San Francisco District’s Regulatory Division by email at CESPN-RG-Info@usace.army.mil or by telephone at (415) 503-6795.
Special Emergency Processing Procedures for Department of the Army Authorizations for Certain Energy-Related Activities in California
Subject to Executive Order (EO) 14156, Declaring a National Energy Emergency
1. Role of the Technical Regional Execution Center (TREC). To assist with resources to process applications, the SPD TREC generally will serve as the technical resource provider for the categories of regulatory emergency activities covered by EO 14156. Districts shall consult with the TREC (TREC Team Lead or TREC Program Manager) within one business day of receipt of a new application/pre-construction notification, to determine TREC capacity. The TREC will notify the District Regulatory Chief within one business day of receiving the request if it does not have adequate resources to process the request.
2. Within 3 business days of receiving an application for a permit:
a. Assign the activity an identification number in ORM2, adhering to the naming convention and the ORM2 Standard Operating Procedure. Complete as much initial data entry as possible, including the appropriate work type.
b. Confirm whether the activity meets the criteria for an energy-related emergency under the EO.
c. Determine the type of DA permit applicable to the proposed activity and add the action in ORM2. Select “EO 14156 Declaring a National Energy Emergency” for Emergency Event under the Additional Items section.
d. Contact the applicant to acknowledge receipt of the application, providing the identification number, and confirm that it is to be processed under the special emergency processing procedures. Request information on the status of certification under Section 401 of the Clean Water Act (33 U.S.C. § 1341) and the status of consistency concurrence under the Coastal Zone Management Act (16 U.S.C. § 1456), if either or both are applicable.
e. Determine whether all information listed in Enclosure 2 (Applicant Submittals) of the SOP for the Developing of Special Emergency Processing Procedures under EO 14156 dated 14 March 2025 (hereinafter, “SOP”) was submitted. If the application involves an individual permit, the applicant must submit a completed ENG 4345. If all the information has not been submitted, contact the applicant about the information needed to complete the permit application.
3. Section 408. Coordination between Regulatory and the district 408 coordinator on new applications/pre-construction notifications for activities covered under EO 14156 shall be completed with an expedited coordination period of three business days. Within five business days of receipt of the application/pre-construction notification that also requires a Section 408 permission, Regulatory shall coordinate with the District 408 coordinator to determine if the action area and area of potential effect (APE) for the Section 408 request is included within the scope of analysis of the regulatory action for the purposes of consultation under section 7 of the Endangered Species and Act and Section 106 of the NHPA. If the action area and APE are within the scope of the regulatory action, regulatory consultations under these procedures will apply to the Section 408 request. If the action area and/or APE for the Section 408 request is larger in scope then regulatory, the district will determine which program will be lead for any required consultations and request emergency consultation under the consulting agencies’ emergency regulations and procedures. Additionally, the district will apply the Regional Categorical Permissions (RCP) to any request under these emergency procedures. If a Section 408 request does not meet the terms and conditions of the RCP, the district 408 coordinator shall work with the non- federal sponsor and requestor to see if the alteration request can be modified to qualify for the RCP. If the alteration request is unable to be modified such that an individual 408 review is required, it will be considered as an extenuating circumstance under paragraph 7.f below. For any public notice of a 408 request, the public notice must be clear that the activity is covered under the EO and provide information about the consultations and coordination underway with tribes and other agencies in accordance with their emergency provisions. The public comment period is 10 calendar days.
4. Within 5 business days of receiving a complete permit application:
a. Using the template provided in Enclosure 7 of the SOP for the Development of Special Emergency Processing Procedures under EO 14156, begin tribal consultation by requesting comments on the permit application within 10 calendar days by email from potentially affected tribes.
b. Contact the appropriate certifying authority under Section 401 of the Clean Water Act by email about the permit application with information about the proposed activity and seek agreement on a reasonable period of time of 25 calendar days for the certifying authority to make a certification decision.
5. Within 10 business days of receiving a complete application for a permit:
a. Add the relevant subactions in ORM2, including those for consultations and coordination necessary for compliance with other laws, such as section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
b. Per communication with the Historic Preservation Advisory Council, the expedited emergency provisions in Section 800.12(b)(2) of the Section 106 regulations apply to requests for Department of the Army permits and section 408 alterations for activities that fall within the bounds of EO 14156. Prior to the undertaking, notify the California State Historic Preservation Office, the Advisory Council of Historic Places, and Native American Tribe(s) of the undertaking and provide them an opportunity to comment within seven days of notification.
c. Start appropriate consultation and coordination necessary for compliance with other laws by email with each other agency in accordance with that agency’s provisions for emergency situations. The timeline for completing each consultation or coordination is 10 calendar days which will be communicated to the agency at the start.
6. Within 15 business days of receiving a complete application for a permit, if the permit action is a standard permit, publish the public notice soliciting comments using the template provided in Enclosure 4 of the SOP. The public notice must be clear that the activity is covered under the EO and provide information about the consultations and coordination underway with Tribes and other agencies in accordance with their emergency provisions. The public comment period is 10 calendar days.
7. Within 30 business days of receiving a complete application for a permit, unless there is an extenuating circumstance, a decision will be made. The decision will be documented using the appropriate template. The decision document must include any comments received from tribes, agencies, or the public and address any consultation or coordination completed under another agency’s emergency provisions or that needs to be completed post-permit decision to support special conditions.
a. If there is an extenuating circumstance, it must be documented in a memorandum for the record and the decision will be made as soon as possible after the SPD Division Commander approves proceeding with emergency procedures.
b. Consideration of Public and Agency Comments. The project manager/408 coordinator will consider comments from interested federal, state, and local agencies; federally recognized tribes; and the affected public that are received within the specified timeframes and retain documentation of that consideration. Comments concerning the proposed activity's compliance with the conditions of agency authority or the need for mitigation to reduce the project's adverse environmental effects to a minimal level shall be included as best management practices or special conditions of the authorization.
c. If the decision is to permit the activity, special conditions should be added to acknowledge the expedited review under the special processing procedures and to fulfill standard procedural requirements. Special conditions may include, but are not limited to, completing a formal delineation of waters of the U.S., requiring compensatory mitigation, monitoring for endangered species or cultural resources, providing additional information or reports for completing consultation or coordination with another agency, and notifying the district upon completion of the activity with as-built drawings.
d. If a water quality certification decision is required and has not been made by the certifying authority under Section 401 of the Clean Water Act at the time the permit decision is made, a provisional notification will be sent to the applicant instructing them to provide a copy of the water quality certification or waiver to the district.
e. If CZMA consistency concurrence is required and has not been made by the State at the time the permit decision is made, a provisional notification will be sent to the applicant instructing them to provide a copy of the CZMA consistency concurrence to the district once received.
f. Districts must issue written authorizations for activities under these special emergency procedures within 30 business days of a complete application, unless extenuating circumstances arise.
g. If the decision is to issue a standard permit, as soon as practicable after the district has issued the written authorization, the district will issue a public notice, using the template provided in Enclosure 5 of the SOP, to advise the public that the district has implemented special emergency processing procedures approved by the South Pacific Division.
8. Significant Impact. The district will prepare a summary of any consultations with the Council on Environmental Quality (CEQ) in the event the emergency response would result in significant environmental impact, and justification that the activity proposed is the minimum necessary to control the immediate impacts of the emergency in accordance with CEQ guidance on emergencies, including CEQ Memorandum, Emergencies and the National Environmental Policy Act Guidance, 14 September 2020.
9. After-the-fact permits. A potential safety issue could occur as a result of work stoppage in response to an alleged violation of section 404 of the Clean Water Act (33 U.S.C. § 1344) and/or Section 10 of the Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403). In these situations, the district engineer may allow work to continue (subject to appropriate limitations and conditions) while the alleged violation is being resolved [see 33 C.F.R. §§ 326.3(c)(4) and (d)(1)]. Initial corrective measures to address the safety concerns may also be specified by the district engineer. In addition, generally work can continue in upland areas (away from the alleged violation and in those areas of waters of the U.S./navigable waters of the U.S. where the ongoing work complies with an existing DA permit).
10. Clarification. References in these special procedures to "permit" should be read to include "408 request." References to "ORM2" should be read to include the "408 tracking system" for 408 requests.