Norfolk District, Regulatory Branch Special Emergency Processing Procedures under Executive Order (E.O.) 14156

Executive Order 14156
National Energy Emergency
Published: April 15, 2025

Norfolk District, Regulatory Branch Special Emergency Processing Procedures under Executive Order (E.O.) 14156

TO WHOM IT MAY CONCERN: The purpose of this notice is to advise the public that the United States Army Corps of Engineers, North Atlantic Division has approved use of emergency permit processing procedures for the Commonwealth of Virginia in accordance with 33 CFR § 325.2(e)(4), for the National Energy Emergency established by Executive Order (E.O.) 14156, 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 E.O.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 of 1899, Section 404 of the Clean Water Act, and/or Section 103 of the Marine Research, Protection, and Sanctuaries Act of 1972, as amended. For the reasons stated in Sec. 1 of E.O. 14156, the President has found that these activities would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard permitting procedures.

The Corps will utilize to the maximum extent practicable existing Regional General Permits, Nationwide Permits, and State Programmatic General Permits to review authorizations from prospective applicants for the discharge or dredge of fill materials into waters of the United States and/or work in, over or under navigable waters of the United States associated with energy and energy resource activities which are subject to E.O. 14156. For activities utilizing the special emergency processing procedures, reasonable efforts will be made to solicit and address comments from interested federal, state, and local agencies, tribes, and the affected and interested public on the proposed activities under these procedures.

BACKGROUND:

a. Executive Order 14156, “Declaring a National Energy Emergency” issued 20 January 2025, includes the following statements:

Sec. 1. Purpose. The energy and critical minerals (‘‘energy’’) identification, leasing, development, production, transportation, refining, and generation capacity of the United States are all far too inadequate to meet our Nation’s needs.

Sec. 2. Emergency Approvals.  (a) The heads of executive departments and agencies (“agencies”) shall identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may process, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on Federal lands.  …

Sec. 3. Expediting the Delivery of Energy Infrastructure. (a) To facilitate the Nation’s energy supply, agencies shall identify and use all relevant lawful emergency and other authorities available to them to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects that are within the identified authority of each of the Secretaries to perform or to advance. …

Sec. 4. Emergency Regulations and Nationwide Permits under the Clean Water Act…and Other Statutes Administered by the Army Corps of Engineers.( a) Within 30 days from the date of this order, the heads of all agencies, as well as the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works shall (i) identify planned or potential actions to facilitate the Nation’s energy supply that may be subject to emergency treatment pursuant to the regulations and nationwide permits promulgated by the Corps, or jointly by the Corps and EPA, pursuant to section 404 of the Clean Water Act, 33 U.S.C. 1344, section 10 of the Rivers and Harbors Act of March 3, 1899, 33 U.S.C. 403, and section 103 of the Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. 1413 (collectively, the "emergency Army Corps permitting provisions"); and

(ii) shall provide a summary report, listing such actions, to the Director of the Office of Management and Budget ("OMB"); the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works; the Assistant to the President for Economic Policy; and the Chairman of the Council on Environmental Quality (CEQ). Such report may be combined, as appropriate, with any other reports required by this order.

(b) Agencies are directed to use, to the fullest extent possible and consistent with applicable law, the emergency Army Corps permitting provisions to facilitate the Nation's energy supply.

Sec. 8. Definitions…. (a) The term “energy” or “energy resources” means crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals, as defined by 30 U.S.C. 1606 (a)(3)…

          i.    Per 30 U.S.C. 1606 (a)(3), The term “critical mineral” means any mineral, element, substance, or material designated as critical by the Secretary under subsection (c). The
                term “critical mineral” does not include— (i) fuel minerals; (ii) water, ice, or snow; (iii) common varieties of sand, gravel, stone, pumice, cinders, and clay.

b. 33 CFR § 325.2(e)(4), states:Division engineers are authorized to approve special processing procedures in emergency situations. An “emergency” is a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. In emergency situations, the district engineer will explain the circumstances and recommend special procedures to the division engineer who will instruct the district engineer as to further processing of the application. Even in an emergency situation, reasonable efforts will be made to receive comments from interested Federal, state, and local agencies and the affected public. Also, notice of any special procedures authorized and their rationale is to be appropriately published as soon as practicable. 

c. Standard Operating Procedures for the United States Army Corps of Engineers Regulatory Program December 2024 supports each division developing emergency procedures, as well as essential points of contact.

PROCEDURES:

a. The Norfolk District will fulfill as many standard procedures at 33 CFR § 325.2(a) as are reasonably tailored to the energy emergency situation, but the district will not delay a timely response because of any standard procedures. The Norfolk District will utilize existing Nationwide Permits, Regional General Permits, and State Programmatic General Permits when applicable and efficient to ensure compliance with the E.O. 14156. Records of the Districts evaluation, including agency coordination, will be part of the written administrative record for the permit decision.

b. Public notices. Should a standard individual permit be required for the energy-related activity requiring DA authorization, reasonable efforts needed to address the energy emergency will be discussed with the applicant.  A public notice will be distributed as soon as practicable, to notify all interested federal, state, and local agencies, tribes, and the affected/interested public of the Corps’ decision to move forward with processing the proposed action under special emergency processing procedures established for the purposes of E.O. 14156.  The notice will identify the special procedures and their rationale. The District will make reasonable efforts tailored to the energy emergency, such as potentially including a 7 to 15-day public notice comment period.  Public notices will explain the rationale for the procedures and request comments from interested federal, state, and local agencies, tribes, and the affected and interested public.  Emergency procedures are alternative procedures and will not be viewed internally, or communicated to the public, as being the equivalent to a procedural waiver or to the lack of any procedures. They will not to be utilized to avoid providing prior public notice of a proposed project where practicable or to bypass procedural requirements of other laws. 

c. Water quality certification. Section 401(a) of the Clean Water Act and 33 CFR § 325.2(b)(1)(ii) preclude the Corps district from issuing a permit until Section 401 water quality certification has been obtained or has been waived, or if water quality certification has been denied.  This remains true in emergency situations.  If the activity requiring DA authorization is not eligible for a general permit where water quality certification has been granted (with or without conditions) or waived for the issuance of that general permit, an individual water quality certification is required to be obtained or waived. A waiver may be deemed to have occurred if the certifying authority has not granted or denied water quality certification prior to the end of the established reasonable period of time (RPOT) for the water quality certification request.   For the purpose of emergency permitting, the District will work with Virginia DEQ to establish a reasonable expedited RPOT.
For an activity that requires a water quality certification or waiver, if water quality certification has not been issued or waived for the issuance of a general permit, the district may issue a provisional notification instructing them to provide a copy of the water quality certification or waiver to the district for the general permit decision. If the emergency activity requires an individual permit and water quality certification or waiver is required, the district may issue a provisional notification instructing them to provide a copy of the water quality certification or waiver to the District for the individual permit decision.

d. Coastal Zone Management Act (CZMA) Consistency Determinations. Section 307(c) of the CZMA of 1972 requires any non-federal applicant for a federal license or permit to conduct an activity affecting land or water uses in the state's coastal zone to furnish a certification that the proposed activity will comply with the state's coastal zone management program. Generally, no permit will be issued until the state has concurred with the non-federal applicant's certification.
For an activity that requires a CZMA consistency concurrence or a presumption of concurrence, if a concurrence or presumption of concurrence has not been issued for the issuance of a general permit, the District may issue a provisional notification instructing them to provide a copy of the CZMA consistency concurrence to the district for the general permit decision.  If the emergency activity is to be authorized by individual permit and CZMA consistency concurrence or a presumption of concurrence is required, the District may issue a provisional notification instructing them to provide a copy of the CZMA consistency concurrence to the district for the individual permit decision.

e. Endangered Species Act (ESA) Section 7.

1. If the Norfolk District determines an emergency energy related action may affect a listed species or designated critical habitat, the district will so notify the US Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS), depending on which listed species or designated critical habitat may be affected, and request prioritization of the review.The District will coordinate with USFWS and/or NMFS to determine if necessary consultations can be competed in an expedited fashion that will not delay a timely response.Consultation timelines will be coordinated with the applicant and may be established based on specific project requirements.
2. If consultation cannot be completed in an expedited fashion that will not delay a timely response,the district will coordinate with the USFWS and/or NMFS (depending on which listed species or designated critical habitat may be affected) to request recommended measures to avoid and minimize the effects of the emergency actions on the listed species or critical habitat in the manner provided for in 50 CFR 402.05.The term emergency is defined in the USFWS’s and NMFS’s section 7 consultation regulations at 50 CFR § 402.05(a) as “…situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” 
   Pursuant to 50 CFR § 402.05(b), “[f]ormal consultation shall be initiated as soon as practicable after the emergency is under control. The Federal agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats.”Information submitted by the Corps will include:
   1. A description of the emergency energy-related action and why it was needed;
   2. Justification for the expedited consultation prior to implementation of the action; and
   3. Evaluation of the impacts of the action on listed species or critical habitat, including documentation of how the USFWS’s and/or NMFS’s recommendations were implemented and the results of the implementation in minimizing impacts to species and critical habitat.
   4. If, after the district coordinates with the USFWS and/or the NMFS to obtain recommendations to minimize the effects of the emergency response action listed species or their critical habitat, and the district determines the emergency response action may affect, but is not likely to adversely affect listed species or their critical habitat, the section 7 consultation process can be completed if the USFWS and/or the NMFS issue a written concurrence for the “may affect, not likely to adversely affect” determination. That written concurrence may be dependent on the district including measures to minimize effects to listed species and designated critical habitat as permit conditions in the DA authorization.
   5. If formal consultation is required, as soon as practicable after the emergency is under control, the action agency initiates formal consultation with the USFWS and/or the NMFS if listed species or designated critical habitat have been adversely affected. Although formal consultation occurs after the response to the emergency, procedurally it is treated like any other formal consultation.
   6. For adverse effects to listed species and designated critical habitat, at the conclusion of consultation USFWS and/or NMFS will provide their opinion on the effects of the emergency action on listed species and critical habitat.

f. National Historic Preservation Act Section 106. The Advisory Council on Historic Preservation has provided information regarding implementation of the Section 106 emergency procedures identified in 36 CFR § 800.12(b) for emergency actions declared under the E.O. 14156. 

1. The Norfolk District, Regulatory Branch (Norfolk District) will so advise the Virginia Department of Historic Resources, State Historic Preservation Office (SHPO), Tribes, and if appropriate, the Advisory Council on Historic Preservation (ACHP) when any coordination request is part of a project covered under Executive Order 14156.
2. Per the Programmatic Agreement between the Norfolk District, ACHP, and the SHPO, The Corps will utilize the programmatic streamlined review process that covers certain projects of limited scope.
3. As appropriate, the Norfolk District will follow the Emergency Procedures under the Programmatic Agreement11 between Federal Highway Administration, Tennessee Vally Authority, the SHPO, and the Norfolk District..
4. When coordination is required either under or independent of the above referenced Programmatic Agreement, the Corps will follow 36 CFR § 800.12(b)(2) and send notification to the ACHP, SHPO/THPO, and Tribes and provide an opportunity to comment within seven (7) days.  As allowed under the ACHP procedures, the Corps will provide additional time to comment should the schedule allow. Requests for additional time will be coordinated with the applicant and alternative timelines may be established based on specific project requirements.  If the Corps determines that circumstances do not permit seven days for comment, the Corps will notify the ACGP, the SHPO, and appropriate Tribes and invite any comments within the time available.
5. ACHP has extended the use of 36 CFR § 800.12(b)(2) throughout the duration of the above-mentioned E.O., until it is rescinded.
6. Section 110(f) of the National Historic Preservation Act which addresses National Historic Landmarks will still require agencies to avoid actions that would harm National Historic Landmarks and Corps will send the 7-day coordination request to the National Park Service in the event that a National Historic Landmark could be affected.
7. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of section 106 (36 CFR § 800.12(d))

f. Essential Fish Habitat Consultation under the Magnuson-Stevens Act. The Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act require federal agencies to consult with the National Marine Fisheries Service (NMFS) on proposed actions that may adversely affect EFH. NMFS’s EFH consultation regulations at 50 CFR § 600.920(a)(1) state: “Consultation is required for emergency Federal actions that may adversely affect EFH, such as hazardous material clean-up, response to natural disasters, or actions to protect public safety.

1. The Norfolk District will so advise NMFS when initiating any coordination request that is part of a project covered under Executive Order 14156.With this notification, the Norfolk District will request prioritization of such review and when necessary, request abbreviated consultation under 50 CFR § 600.920(h).  Consultation timelines will be coordinated with the applicant and may be established based on specific project requirements. 
2. In emergency situations, expanded consultations may be conducted under 50 CFR § 600.920(i). Consultation timelines will be coordinated with the applicant and may be established based on specific project requirements.
3. Norfolk District will contact NMFS early in emergency response planning but may consult after-the-fact if consultation on an expedited basis is not practicable before taking the action.

h. Tribal consultation and the Corps’ tribal trust responsibilities. The Corps’ Regulatory Program recognizes the sovereign status of American Indian Tribal Governments (federally recognized American Indian Tribes), and our obligation for meaningful consultation on a government-to-government basis.  The Norfolk District is committed to fulfilling our nation’s trust responsibility to federally recognized American Indian Tribes in accordance with the United States Constitution, Treaties, Presidential Executive Orders, statutes, and the Supreme Court decisions that gave rise to and define that responsibility.  The district will make all efforts to immediately initiate coordination/consultation with Tribes pursuant to existing procedures and practices and will work with the Tribe(s) to expeditiously carry out consultations.  Records of these contacts and the district’s evaluation, including any request for extensions of the public comment period, will be part of the written administrative record for the permit decision.

i. 408 permissions.  DPM CW 2018-10 directs the USACE Regulatory and Section 408 programs to synchronize their reviews under their respective authorities, in order to be responsive to Administration priorities and support efforts toward streamlined federal environmental reviews. When appropriate, permit reviews subject to E.O. 14156 will be coordinated with District 408 coordinators to ensure a synchronized review.

APPLICATION SUBMITTALS: To apply for use of the emergency permitting procedures the applicant must follow the existing application submittal processes found at https://www.nao.usace.army.mil/Missions/Regulatory/JPA.aspx.

The purpose of this public notice is to announce the establishment and use of the following emergency permit processing procedures If you have any questions concerning these special emergency processing procedures, please contact Mr. Tom Walker at William.t.walker@usace.army.mil or Ms. Kimberly Prisco-Baggett at Kimberly.A.Prisco-Baggett@usace.army.mil.