Appeals Court Invalidates 2007 Version of NWP 21

The U.S. Court of Appeals for the Sixth Circuit in the this week struck down the U.S. Army Corps of Engineers’ (Corps) 2007 issuance of nationwide permit (NWP) 21 as violating the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA). The 2007 version of NWP 21 authorized in-stream activities related to surface coal mining activities.  The Corps programmatically reissued NWP 21 in 2012, placing limits on the range of activities that could qualify for authorization under its terms and conditions. In its programmatic reissuance of NWP 21, the Corps allowed operations previously-permitted under the 2007 version to be “re-certified” and continue work for up to five years since the activities would not qualify for NWP 21 authorization under the restrictions contained in the 2012 version of the permit.  The Sixth Circuit ruling overturns a district court decision and invalidates the 2007 NWP 21, including the five-year reauthorization or “grace period” provided by the Corps for the completion of activities. The court invalidated the Corps’ issuance of the 2007 NWP 21 as arbitrary and capricious but stayed the ruling for 60 days to allow for an assessment of the ramifications of the ruling on existing projects and consideration of potential remedies.  We are still reviewing the decision and discussing its application to NWP 21s outside of the Sixth Circuit’s jurisdiction.  For a copy of the decision, contact jbostic@wvcoal.com