The Sixth Circuit Court of Appeals has invalidated the U.S. Army Corps of Engineers’ (Corps’) Clean Water Act (CWA) General Permit 21, covering surface mining discharges of dredged and fill material. Ky. Riverkeeper, Inc. v. Rowlette, No. 11-6083 (6th Cir. 4/22/13). While the court remanded the matter for further proceedings, it stayed the ruling for 60 days to give “the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.”
The Corps issued the disputed version of General Permit 21 in 2007. Although the Corps reissued the permit in more stringent form in 2012, it also issued an “accommodation” under which the 2007 provisions apply as late as 2017 to operations already underway. Accordingly, the court held that the challenge to the 2007 version remained subject to its jurisdiction and found that the Corps had not properly assessed the present effects of past mining activities or the cumulative effects of future permitted actions, as required by law. The court also held that the Corps improperly relied on the success of its compensatory mitigation process to demonstrate that any cumulative adverse effects would be minimal.