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Ohio Valley Envtl. Coalition v. Bulen

ELR Citation: 34 ELR 20048
Nos. No. 3:03-2281, (S.D. W. Va., 07/08/2004)

A district court held that nationwide permit (NWP) 21, which authorizes the discharge of dredged or fill material into waters of the United States associated with surface coal mining and reclamation operations, does not comply with the plain language, structure, and legislative history of the CWA. Despite the government's claim to the contrary, the U.S. Army Corps of Engineers' issuance of NWP 21 was a final agency action subject to judicial review, and even if the ripeness doctrine limited the court's jurisdiction to review of the environmental groups' site-specific claims, such review would necessarily involve consideration of whether NWP 21 complies with the CWA. In addition, the groups have standing. As for the merits, NWP 21 violates the CWA. CWA §404(e) authorizes the Corps to issue nationwide permits only for those activities determined before issuance to have minimal environmental impact. NWP 21, however, requires a case-by-case, post hoc determination of minimal environmental impact and therefore runs afoul of that section. The court therefore enjoined the Corps from issuing authorizations pursuant to NWP 21 in the Southern District of West Virginia, and it suspended the specific mining projects challenged by the groups.