A federal judge for the United States District Court for the Western District of Washington ruled last week that the U.S. Army Corps of Engineers’ (“Corps”) reissuance of Nationwide Permit 48 (“NWP 48”) was unlawful, and set aside the permit within the state of Washington. Plaintiffs in the case, The Coal. to Protect Puget Sound Habitat v. U.S. Army Corps of Eng’rs, et al., No. 17-1209RSL, 2019 WL 5103309 (W.D. Wash. Oct. 10, 2019), brought suit alleging that by reissuing NWP 48 the Corps had violated two federal environmental laws, the Clean Water Act (“CWA”), and the National Environmental Policy Act (“NEPA”). The court agreed, concluding that the Corps failed to “adequately consider the impacts of commercial shellfish aquaculture activities authorized by NWP 48,” and that the Corps’ “conclusory findings of minimal individual and cumulative impacts are not supported by substantial evidence in the record.”

Under the CWA, the Corps is responsible for issuing permits for the discharge of dredged or fill material into the navigable waters of the U.S. 33 U.S.C. § 1344(a). The types of permits issued may be either individual or general.  Individual permits are issued for discharges that have potentially significant impacts.  General permits, on the other hand, may be issued on a national, regional or state basis, but only after Corps first determines that the activities in the category are 1) similar in nature, and 2) will only cause minimal adverse environmental effects. 33 U.S.C. § 1344(e).

In addition to CWA requirements, NEPA requires that federal agencies analyze environmental impacts of their proposed actions. Pursuant to NEPA, federal agencies must first draft an Environmental Assessment (“EA”) of a proposed action, which should describe the anticipated environmental impacts and provide enough evidence to support either the preparation of a more in-depth Environmental Impact Statement (“EIS”) or a finding of no significant impact. 40 C.F.R. § 1508.9.

The Corps reissued NWP 48, a nationwide general permit, in 2017.  NWP 48 authorizes the installation of “buoys, floats, racks, trays, nets, lines, tubes, containers, and other structures into navigable was of the United States.” The permit also authorizes “discharges of dredged or fill material into waters of the United States necessary for shellfish seeding, rearing, cultivating, transplanting, and harvesting activities.” The Corps issued the permit after deciding that the activities authorized by NWP 48 would not result in “more than minimal individual and cumulative adverse effects on the aquatic environment”, as required by the CWA. When reissuing the permit, the Corps also published an EA which concluded that NWP 48 would not have a significant impact on the quality of the human environment, and that an EIS was therefore unnecessary.

The plaintiffs argued, and the court agreed, that neither of those conclusions were supported by sufficient evidence to satisfy the requirements of either the CWA or NEPA. In particular, the court ruled that the Corps had failed to adequately consider the impacts of the commercial shellfish aquaculture activities authorized by NWP 48.  Because the Corps opted to include all commercial shellfish aquaculture activities within the U.S. in one nationwide permit, the court felt that it was nearly impossible for the Corps to accurately evaluate environmental impacts, given the varying ecosystems that were involved. Instead, the Corps left it to district engineers to make such determinations, noting in the permit that regional Corps districts had the authority to modify nationwide permits in their region, impose regional conditions, and even require applicants in their region to seek individual permits if it was necessary to ensure minimal impacts.  As a result, the court concluded that this decision violated the CWA requirement that the Corps determine that the permit will cause only minimal environmental impacts because the Corps has left it up to regional engineers to make those assessments.

The court also ruled that the Corps failed to provide evidence in the EA to justify its finding of no significant impact. The Corps acknowledged in the EA that the reissuance of NWP 48 would have foreseeable impacts on “the biotic and abiotic components of coastal waters, the intertidal and subtidal habitats of fish, eelgrass, and birds, the marine substrate, the balance between native and non-native species, pollution, and water quality, chemistry, and structure,” but then failed to describe the expected consequences. Because the Corps made no attempt to quantify the anticipated impacts of the action or support its conclusion that the impacts would be no more than minimal, the court found that the Corps violated the requirements of NEPA.

Because the court concluded that NWP 48 was in violation of both the CWA and NEPA, it set aside the permit as it applied to activities within Washington state. However, the court decided not to make a final decision on whether to vacate NWP 48 while the Corps brings the permit into CWA and NEPA compliance. If NWP 48 is vacated, individuals in the state of Washington would not be able to continue carrying out activities that NWP 48 allowed them to engage in while the Corps brought the permit into compliance. Simply setting aside the NWP 48 would allow current operations to continue, while forbidding new applicants from obtaining the permit. The defendants have asked the court to let all parties to the case file additional documents with the court discussing whether vacating NWP 48 would be appropriate. The court has agreed to this request, and will wait for all parties to make further arguments about what remedy would be most appropriate before making a final decision.

To read the full court decision click here.

To read the text of NWP 48 click here.

To read the Decision Document containing the EA for NWP 48 click here.

To learn more about the CWA click here.