Ohio Valley Environmental Coalition v. Bulen

Section 404(a) of the Clean Water Act (CWA) gave the United States Army Corps of Engineers (corps) (defendant) permitting authority over the discharge of certain mining materials into waters of the United States. The permitting process required extensive notice and procedural hurdles. A court decision greatly expanded the corps’ jurisdiction by reading “waters” more broadly. In response to the expansion, Congress added a second permitting provision, § 404(e). Section 404(e) allowed the corps an expedited review process of permits by issuing nationwide permits for activities that the corps determined had minimal impact. The corps issued a nationwide permit (NWP 21) for mining discharges if the mining operation was authorized under the Surface Mining Control and Reclamation Act. Although nationwide permits under CWA § 404(e) were intended to provide blanket approvals for activities without further analysis (in contrast to the procedural analysis required under § 404(a)), NWP 21 required further analysis by the corps. The Ohio Valley Environmental Coalition and other environmental groups (plaintiffs) sued the corps, claiming that NWP 21 was contrary to the CWA. The corps made several procedural arguments as to why the case should be dismissed (such as that it was not ripe and that the plaintiffs did not have standing), which the court rejected. The parties cross-moved for summary judgment on the question of whether NWP 21 was consistent with the CWA.