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Sierra Club v. United States Army Corps of Engineers

ELR Citation: 48 ELR 20198
Nos. 18-1173, (4th Cir., 11/27/2018)

The Fourth Circuit vacated the U.S. Army Corps of Engineers' verification that construction of a natural gas pipeline could proceed in West Virginia under the terms and conditions of CWA Nationwide Permit (NWP) 12. Environmental groups argued that the Corps improperly incorporated the state's conditions into its verification by substituting its own special condition in lieu of a different special condition imposed by West Virginia as part of its NWP 12 certification. The court concluded that the Corps exceeded its statutory authority because CWA §401 unambiguously required the agency to incorporate the state's certification with its special conditions without modification. The groups also argued that the state itself violated the CWA by waiving its requirement that the pipeline developer obtain an individual water quality certification without providing public notice and comment. The court found that the state's waiver was invalid because the state did not follow the notice-and-comment procedures mandated by the CWA and that the certification thus remained a required condition of the NWP. Because the developer did not satisfy this condition, the Corps' own verification was invalid. The court therefore vacated the agency's verification in its entirety.