Summary of a Recent
Judicial Development in
Clean Water Act

Corps of Engineers' Decision to Issue Nationwide Permit
Was Arbitrary and Capricious

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Ohio Valley Environmental Coalition v. Hurst, 604 F. Supp. 2d 860, 2009 WL 819230 (S.D. W. Va. 2009), the United States District Court for the Southern District of West Virginia held that the Army Corps of Engineers' decision to issue a nationwide permit authorizing the discharge of dredged and fill material associated with surface coal mining activities was arbitrary and capricious under the Administrative Procedures Act (APA), and therefore vacated the permit.

Background

Several environmental groups challenged the Army Corps of Engineers' decision to issue a nationwide permit (NWP) authorizing the discharge of dredged and fill material associated with surface coal mining activities. Id. at *1. The Corps is responsible for regulating this process through its nationwide permitting system, which in turn is governed in part by the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). Id. The CWA requires the Corps to determine that the activities in the authorized category would only have minimal environmental impacts, both individually and cumulatively, and NEPA requires the Corps to take a "hard look" at the environmental impacts of a project and prepare an environmental impact statement before issuing a nationwide permit, unless it determines that the activities authorized by the permit will only result in insignificant environmental impacts. Id. In this case, the Corps made a determination of minimal cumulative environmental impact and did not prepare an environmental impact statement. Id. The plaintiff organizations challenged that determination and the resulting permit issuance, claiming it was arbitrary and capricious under the APA. Id.

Analysis and Holdings

The court found the Corps' determination to be arbitrary and capricious in violation of the APA on two grounds: (1) the Corps failed to consider ongoing impacts of past projects as part of its cumulative impact analysis, and (2) its determinations relied on the success of a mitigation process to minimize the cumulative impacts, but it did not provide a rational explanation for the reliance or provide evidence that the mitigation process would be successful or adequately enforced. Id. at *16, *23-28. The court therefore vacated the NWP and remanded the matter to the Corps for further proceedings. Id. at *30.

The case was decided on March 31, 2009.