On Wednesday, just before recessing for Thanksgiving, the Fourth Circuit handed down an opinion in a case involving the Army Corps of Engineers’ promulgation of Nationwide Permit 21, as authorized by the Clean Water Act.  The ruling, in Ohio Valley Environmental Coalition v. Bulen, finds that “the Corps complied with the CWA when it promulgated NWP 21.”

As environmental law is highly specialized, I mentioned this decision last week to a good friend who practices in this field, Jim Lang of Pender & Coward of Virginia Beach.  Without any prompting from me, Jim drafted this short essay on the ruling, and graciously consented to my publishing it here.  If any of you would like to talk about this case, or any other environmental issues with Jim, you may contact him at (757) 490-3000.

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This case continues the trend established in the last 2-3 years in the Fourth Circuit wherein the Court of Appeals reverses District Court decisions holding that the U.S. Army Corps of Engineers had misused its authority under the Clean Water Act.  The Fourth Circuit, which is often characterized as “conservative” and sympathetic to “property rights”, has in these cases supported the Army Corps of Engineers without regard to whether the Corps wielded its authority in these wetlands cases in a manner to limit or to support development.  Perhaps what we are seeing here is a validation of this particular Appellate Court’s reputation for extending to the Government the benefit of the doubt in close cases (as was done in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), later reversed by the U.S. Supreme Court, Hamdi v. Rumsfeld, 542 U.S. 507 (2004)).  In any event, Ohio Valley Environmental Coalition v. Bulen, No. 04-2129 (4th Cir. Decided Nov. 23, 2005) relies on the classic doctrine of judicial deference to the decision reached by the administrative agency, in the situation where the particular agency was charged by Congress with the task of administering a rather complicated environmental statute, leading to reversal of the contrary holding reached by the District Court below. 

      Clean Water Act section 404, 33 U.S.C. §1344, empowers the Corps require those who wish to place dredged or fill material into navigable waters to first obtain a permit.  Navigable waters, in turn, is defined in the Act to mean “the waters of the United States, including the territorial seas.”  33 U.S.C. § 1362(7).  The Army Corps of Engineers (not EPA(!)) is the federal agency charged by statute to administer the wetlands program, which is done through issuance of individual and general permits.  A general permit issued by the Corps in 2002, which allows mining activities nationwide to proceed (Nation Wide Permit 21 or NWP 21), is the focus of the Bulen litigation. 

      Two years previously, it was the jurisdictional reach of the term “navigable waters” that was before the Fourth Circuit for decision in Treacy v. Newdunn Associates, 344 F.3d 407 (4th Cir. 2003).  There, the Fourth Circuit reversed a District Court which had held that the Corps lacked wetlands jurisdiction to limit development on a 43 acre parcel near Newport News, Virginia, even though the parcel was somewhat removed from the nearest free flowing waterbody. 

      Also in 2003, the Fourth Circuit reversed a District Court in a wetlands case that presaged the result reached by the Court in Bulen.  The plaintiffs in that earlier case unsuccessfully prosecuted both a facial challenge and an as applied challenge to NWP 21.  See, Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003).  

      Undeterred by the adverse result in Rivenburgh, the 2005 Bulen litigation effort was led by the nationally prominent, well funded, and litigation savvy environmental advocacy group, Natural Resources Defense Council.  The Bulen plaintiffs attacked the procedural and substantive reasonableness NWP 21.  As such, Bulen was a purely facial challenge to NWP 21.  As in both Treacy and Kentuckians for the Commonwealth, decided two years earlier, the District Court in Bulen ruled against the Corps, only to be reversed by the Fourth Circuit which invoked Chevron judicial deference to hold that the Corps had properly exercised its statutory authority. 

      There remains one pending citizen suit case involving a challenge to NWP 21.  It is Kentucky Riverkeeper v. Rowlette, Civ. No. 05-36 (E.D. Ky. Complaint filed Jan. 27, 2005).  A summary judgment motion was recently argued and is pending decision by the Court.