The National Sea Grant Law Center


  • Legal Challenge to NWP 56: False Alarm or More to Come?

  • December 15th, 2022 — by Samantha Hamilton — Category: Miscellaneous

  • Since 1977, the United States Army Corps of Engineers (USACE or the Corps) has issued Nationwide Permits (NWPs) to authorize activities which “will result in no more than minimal individual and cumulative adverse environmental effects” pursuant to the Clean Water Act (86 CFR 2744). These permits may be issued and reissued for five-year periods following the notice and comment process of the Administrative Procedure Act (APA). (NWP Fact Sheet). There are currently 59 NWPs, and while many go relatively unnoticed, a few have proven controversial.

    On January 13, 2021, the Corps issued Nationwide Permit 56, which authorizes structures in marine and estuarine waters designed for use in finfish mariculture. (NWP 56). This permit allows permittees to, after providing pre-construction notice to the Corps and the Coast Guard, install structures such as cages, net pens, anchors, floats, buoys, etc. in navigable waters of the United States. NWP 56 has caused concern for parties who believe it allows the Corps to circumvent environmental review processes. The Center for Food Safety (CFS or the Center) filed a Notice of Intent to Sue the Corps regarding NWP 56 on June 22, 2022, claiming the Corps violated the Endangered Species Act (ESA). The Center asserts that NWP 56 improperly circumvents the review process mandated by Section 7 of the ESA by utilizing individual project-level review for permitting sites rather than programmatic review of the overall impacts of issuing NWP 56. (Notice). The 60 day notice is a required first step for a lawsuit under ESA section 11(g)(2)(A)(i).

    A similar lawsuit was filed in 2019 over NWP 12, which authorizes activities in waters of the United States associated with the construction, maintenance, repair, and removal of oil and gas pipelines for utilizing project-level, rather than programmatic review in violation of the consultation requirements of the ESA. (N. Plains Res. Council v. U.S. Army Corps of Engineers, 454 F. Supp. 3d 985 (D. Mont.)). The United States District Court for the District of Montana found for the Plaintiffs, holding “[t]he Corps cannot circumvent ESA Section 7(a)(2) consultation requirements by relying on project-level review. . . Project-level review does not relieve the Corps of its duty to consult on the issuance of nationwide permits at the programmatic level. The Corps must consider the effect of the entire agency action.” (N. Plains Res. Council v. U.S. Army Corps of Engineers, 454 F. Supp. 3d 985, 992 (D. Mont.)). NWP 12 was reissued again in January 2021 (86 FR 2744), and faced the same challenge. (Ctr. for Biological Diversity v. Spellmon, No. CV-21-47-GF-BMM, 2022 WL 3541879 (D. Mont. Aug. 18, 2022)). However, as of this writing, the case is being transferred to a more proper venue.

    Additionally, NWP 48, which authorized commercial shellfish aquaculture activities, was vacated in 2021 by the Ninth Circuit Court of Appeals. (Coal. to Protect Puget Sound Habitat v. United States Army Corps of Engineers, 843 F. App'x 77 (9th Cir. 2021)). The court ruled that the Corps issuance of NWP 48 violated the Clean Water Act and NEPA due to the Corps failure to adequately explain its finding that NWP 48 would have no significant environmental impact. (Ninth Circuit Affirms Partial Vacatur of NWP 48 for Commercial Shellfish Aquaculture).

    Despite proven success with challenges based on the Corps failing to properly consider environmental impacts, the Center for Food Safety has not quite pursued that route by filing the suit for which they gave notice. On July 25, 2022, before the end of the 60-day notice period, the Center filed a Complaint against the Corps alleging violations of the Freedom of Information Act (FOIA). The Complaint alleges that on May 5, 2022, the Center submitted a FOIA request to USACE seeking “[a]ny and all documents. . . regarding the U.S. Army Corps of Engineers’ decision to issue Nationwide Permit 56” (Complaint paragraph 27). The Corps did not provide the requested documents within the 20 days allotted by FOIA, nor for weeks afterward. FOIA authorizes requesters of information to sue if the government agency fails to respond within the applicable time limit. 5 U.S.C. § 552(a)(6)(C)(i). The Center’s complaint asked the Court to declare the Corps in violation of FOIA and compel it to produce the requested documents. (Complaint).

    The Corps’ Answer was due December 02, after two motions requesting additional time were granted. On December 01, the Corps filed a third motion requesting additional time because the Corps has provided the Center with requested documents and an index describing the documents that were withheld due to privilege and the basis for a determination that a privilege applied. (Motion). The Court granted the motion in light of the parties’ ongoing discussions and ordered the Corps to file their Answer on or before January 06, 2023.

    These lawsuits, along with others filed over NWPs, highlight a trend of environmental organizations challenging administrative actions which they believe are not getting proper review. Whether the parties reach a settlement over the FOIA lawsuit, or the Center pursues its lawsuit under the ESA, NSGLC will continue to follow the legal twists and turns.

  • Samantha Hamilton
    Ocean and Coastal Law Fellow

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