In February, the Corps of Engineers (“Corps”) issued revised versions of its 48 nationwide permits (“NWPs”), authorizing certain categories of dredge and fill activities in wetlands and water bodies under Section 404 of the Clean Water Act. On the same day, the U.S. Fish and Wildlife Service (“FWS”) issued a Biological Opinion (“BiOP”) finding that the Corps’ NWPs do not adequately protect threatened or endangered species, and describing a series of reasonable and prudent alternatives (“RPAs”) to limit harms. Because FWS consultation is required under the Endangered Species Act (“ESA”), the BiOP resulted in the legality of activities authorized by the NWPs being questioned.
Since February, the some Corps regions have attached conditions to some of the NWPs, meant to implement some of the RPAs recommended by FWS, including prohibitions on the use of certain treated wood products in certain types of projects in Alaska waters and within the Northwest Corps region. Based in part on the conditions imposed by the Corps regions, and in part on other matters, FWS informed the Corps in a July 27 letter that “reinitiation of formal Section 7 consultation is appropriate” under the ESA, to revisit the BiOP.
Meanwhile, some of the conditions attached to NWPs by Corps regions have been challenged in litigation filed by the treated wood industry, Railway Tie Association v John M. McHugh, filed in the U.S District Court for the District of Columbia on July 30. The lawsuit asserts that the conditions constitute a rulemaking conducted without the required notice and comment, without an Environmental Impact Statement, and are otherwise unlawful.
The result of all this activity is uncertainty about the protection afforded by the NWPs for the activities they authorize.
