Sierra Club v. United States Army Corps of Engineers, No. 18-1173 (4th Cir. 2018)Annotate this Case
The 42-inch diameter natural gas Mountain Valley Pipeline proposes to run 304 miles through Virginia and West Virginia, In the U.S. Army Corps of Engineers’ Huntington District, the Pipeline and related roads will cross 591 federal water bodies, including four major rivers three of which are navigable-in-fact rivers regulated by the Rivers and Harbors Act, 33 U.S.C. 403. Because construction will involve the discharge of fill material into federal waters, the Clean Water Act requires clearance from the Corps, 33 U.S.C. 1344(a). The Act provides for individual permits or “interested parties can try to fit their proposed activity within the scope of an existing general permit,” in this case Clean Water Act Nationwide Permit (NWP) 12, “which acts as a standing authorization for developers to undertake an entire category of activities deemed to create only minimal environmental impact.” The Corps verified that the Pipeline can proceed under NWP 12 rather than an individual permit. The Fourth Circuit vacated, holding that the Corps lacked statutory authority to substitute its own special condition for a different special condition imposed by West Virginia as part of its certification of NWP 12. Without completion of the notice-and-comment procedures required by the Act, a state cannot waive a special condition previously imposed as part of its certification of a nationwide permit. West Virginia did not follow federally-mandated notice-and-comment procedures in waiving another special condition imposed as part of its certification of NWP 12.
This opinion or order relates to an opinion or order originally issued on October 2, 2018.