"This decision sends a message to industry: you cannot have free rein to destroy our nation's streams and wetlands," said Earthjustice attorney Howard Fox, who intervened in the industry suit on behalf of NRDC (Natural Resources Defense Council) and Sierra Club. "Everyone who cares about protecting our nation's waters can give thanks today for this decision."
Under the Clean Water Act, discharge of dredged or fill material into US waters requires a permit from the Army Corps of Engineers. Normally, would-be dischargers must apply for such permits individually. However, if the Corps identifies a category of activities that would have only minimal environmental impact, it can issue a general permit -- that is, a blanket authorization for all activities in the category, without the normal individual scrutiny and opportunity for public input. In the past, the Corps has issued various general permits -- known as nationwide permits -- that apply throughout the nation.
In 2000 and again in 2002, the Corps revised and reissued numerous nationwide permits. Industry sued to weaken these permits, seeking to gain broader blanket authorization to harm wetlands and streams. Earthjustice intervened on behalf of NRDC and Sierra Club to oppose the industry suits.
"We went to court to ensure that the already excessive destruction allowed under the existing permits was not made worse by a return to the days when headwater streams and wetlands were virtually written-off for protection," said Daniel Rosenberg, an attorney with NRDC. "For the developer and mining interests who brought this case, weak permits aren't good enough, they want whole classes of streams and wetlands to lose Clean Water Act protection. Today we give thanks that the court recognized their case was a turkey."
By granting nationwide permits, the Army Corps of Engineers essentially approves in advance destructive activities without requiring additional review of individual projects' environmental impact. Some of these permits, issued under Section 404 of the Clean Water Act, have allowed the authorization of tens of thousands of wetland-destroying projects.
In a four-year regulatory process concluding in 2000, the Corps reviewed and revised its Section 404 nationwide permits to restrict the range of activities for which no individual permit is required. Some of the Corps' revised permits contain safeguards such as limits on the size of the affected area, advance notice requirements, and geographic restrictions.
The 2000 decision was weakened in certain respects under the Bush administration in January 2002 in response to industry complaints, but industry was still dissatisfied. The National Association of Home Builders and other industry groups challenged these revised nationwide permits, seeking a return to the days when they had much wider leeway to destroy wetlands without obtaining project-by-project permits.
"The Court decision is a major victory for America's wetlands and streams, but we still have a long way to go to halt the rubber-stamping of activities that destroy these resources," said Robin Mann with Sierra Club. "We must ensure that these critical resources are afforded the protections intended under the Clean Water Act."
The decision from the U.S. District Court for the District of Columbia was issued November 24. The case is National Association of Home Builders v. U.S. Army Corps of Engineers, et al., D.D.C. 00cv379 RJL and consolidated cases.