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Mobile Baykeeper v. U.S. Army Corps of Engineers

ELR Citation: 44 ELR 20233
Nos. 1:14-cv-00032, (S.D. Ala., 10/16/2014) (Steele, C.J.)

A district court dismissed an environmental group's lawsuit challenging the U.S. Army Corps of Engineer's determination that Nationwide Permit 12 (NWP 12) applied to the discharge of dredged and fill material in Alabama's Big Creek Lake watershed in connection with a larger pipeline construction project. The group alleged that in verifying the project, the Corps violated the CWA and the APA by failing to consider the project's proximity to public water supply intakes, the cumulative impacts of the pipeline route in the watershed, and whether routing the pipeline through the watershed would be contrary to the public interest. But the applicable statutes and regulations do not require the Corps to perform an in-depth, pre-verification examination of a project's proximity to public water supply before issuing NWP 12 verifications. In addition, the Corps articulated a satisfactory explanation for its minimal impacts determination, including a rational connection between the facts found and the choice made. And the Corps need not conduct a public interest analysis prior to issuing a NWP 12 verification. Also, the group's claims pertaining to stream crossings that the construction company ultimately accomplished using horizontal directional drilling (HDD) are moot. The Corps lacks jurisdiction over HDD activities, and the verifications that the Corps issued for trenches to be dug at those stream crossings were actually completed in a manner that involved no trenches, no discharge of dredged or fill material into United States waters and, hence, no activities for which Corps approval was needed.